JX 

5361 
C3 
1908 


LIBRARY 

UNIVERSITY  OF 

CALIFORNIA 

IRVINE 

J 


53(ol 


NEUTRAL  RIGHTS  AND  OBLIGATIONS 
IN  THE  ANGLO-BOER  WAR 


SERIES  xxvi  Nos.  4-5-6 

JOHNS  HOPKINS  UNIVERSITY  STUDIES 

IN 

HISTORICAL  AND  POLITICAL  SCIENCE 

Under  the  Direction  of  the 

Departments  of  History,  Political  Economy,  and 
Political  Science 


NEUTRAL  RIGHTS  AND  OBLIGATIONS 
IN  THE  ANGLO-BOER  WAR 


BY 


ROBERT  GRANVILLE  CAMPBELL 

iti 

Fellow  in  Political  Science,  Johns  Hopkins  University 


BALTIMORE 
THE  JOHNS  HOPKINS  PRESS 

PUBLISHED  MONTHLY 

April— May— June,  1908 


COPYRIGHT  1908  BY 
THE  JOHNS  HOPKINS  PRESS 


PRESS  OF 

THE  NEW  ERA  PRINTING  C 
LANCASTER.  PA. 


PREFACE. 


This  essay  is  the  outgrowth  of  work  done  in  the  Political 
Science  Seminary  of  the  Johns  Hopkins  University  and  is 
a  portion  of  a  larger  study  dealing  with  the  causes  of  the 
Anglo-Boer  War  and  the  questions  of  international  law 
arising  during  that  conflict. 

At  the  beginning  of  the  war  the  English  Government  was 
inclined  to  view  the  contest  as  one  which  would  not  make 
it  necessary  to  call  into  operation  the  neutrality  laws  of 
third  parties.  It  was  soon  realized,  however,  that  the  con- 
dition of  insurgency  was  not  broad  enough  to  sustain  the 
relations  between  the  two  Governments.  Toward  the  close 
of  November  Great  Britain's  declaration  with  a  retroactive 
effect  put  the  contest  upon  a  distinctly  belligerent  basis 
and  accepted  the  date  of  the  Transvaal's  ultimatum,  5 
p.  M.,  October  n,  1899,  as  the  commencement  of  the  war. 

Other  Powers  which  had  awaited  this  announcement  with 
some  anxiety  at  once  declared  their  attitude  toward  the 
war.  Among  the  first  to  assume  this  neutral  position  was 
the  United  States  with  the  announcement  that  its  attitude 
would  be  in  accordance  with  the  requirements  of  the 
strictest  neutrality. 

It  is  the  purpose  of  the  first  chapter  to  inquire  how  far 
these  obligations  were  fulfilled  by  the  United  States  Gov- 
ernment, and  in  the  second  chapter  the  attitude  of  Euro- 
pean Governments  is  considered.  In  the  third  chapter  the 
rights  and  obligations  of  belligerents  and  neutrals  are  dis- 
cussed with  regard  to  neutral  commerce.  Under  this  topic 
the  wide  divergence  of  English  practice  from  Continental 
as  well  as  from  American  opinion  on  points  of  international 
law  cannot  fail  to  be  noticed. 


vi  Preface. 

The  chief  sources  of  information  used  in  the  preparation 
of  the  present  paper  have  been  the  British  Blue  Books ;  the 
Foreign  Relations  of  the  United  States;  the  House  and 
Senate  Documents  not  included  in  the  Foreign  Relations; 
the  Congressional  Record,  Debates  in  Congress,  Resolu- 
tions and  Reports  in  answer  to  requests  for  information. 
Other  sources  and  authorities  are  indicated  in  the  footnotes. 

I  wish  to  express  my  gratitude  to  Dr.  W.  W.  Willoughby, 
not  only  for  his  careful  criticism  of  this  study  during  its 
preparation,  and  for  the  helpful  suggestions  by  which  he 
has  attempted  to  correct  some  of  its  obvious  deficiencies, 
but  especially  for  his  kindly  inspiration  at  all  times. 


•  • 


CONTENTS. 


PREFACE  v 

CHAPTER      I.    THE  NEUTRALITY  OF  THE  UNITED 

STATES  9 

CHAPTER    II.    THE    NEUTRALITY    OF    EUROPEAN 

POWERS 47 

CHAPTER  III.    CONTRABAND  OF  WAR  AND  NEUTRAL 

PORTS    78 

CHAPTER  IV.    TRADING  WITH  THE  ENEMY 113 


NEUTRAL  RIGHTS  AND  OBLIGATIONS  IN 
THE  ANGLO-BOER  WAR. 


CHAPTER  I. 
THE  NEUTRALITY  OF  THE  UNITED  STATES. 

The  neutral  attitude  assumed  by  the  United  States  was 
maintained  throughout  the  war.  With  reference  to  any 
official  recognition  of  the  Transvaal  as  an  independent 
State  apart  from  the  immediate  purposes  of  war  no  action 
was  taken.  This  view  of  the  situation  in  South  Africa  was 
entirely  consistent  with  the  requirements  of  international 
law,  and,  in  carrying  out  the  obligations  of  a  neutral  to 
the  belligerents,  the  governmental  position  was  fully  justi- 
fied by  a  knowledge  of  the  relations  which  had  existed 
between  the  Transvaal  and  Great  Britain  in  the  past. 

Early  in  October,  before  war  had  actually  begun,  it  was 
understood  that  Mr.  Pierce,  the  Orange  Free  State  consul- 
general  in  New  York,  had  made  every  effort  to  induce 
President  McKinley  to  request  other  nations  to  act  with 
the  United  States  as  arbitrators  in  the  dispute  between  the 
Governments  of  the  Transvaal  and  Great  Britain,  but  the 
close  friendship  existing  between  England  and  the  United 
States  and  the  very  friendly  attitude  assumed  by  Great 
Britain  during  the  Spanish-American  War  made  such  ac- 
tion impossible.  The  State  Department  at  Washington 
announced  that  in  the  event  of  war  the  Government  would 
maintain  an  absolutely  neutral  attitude,  and  issued  instruc- 
tions early  in  October  to  all  American  consuls  in  South 
Africa  directing  them  to  secure  protection  for  all  neutrals 
of  the  United  States  who  had  not  affiliated  politically  with 
either  Great  Britain  or  the  South  African  Republics,  either 
by  exercising  the  franchise  or  otherwise.  While  those 


io  Neutral  Rights  in  the  Anglo-Boer  War.         [162 

whom  this  definition  did  not  cover  were  not  to  be  directly 
under  the  protection  of  the  United  States,  the  State  Depart- 
ment expressed  itself  as  ready  to  use  its  good  offices  in  their 
behalf  in  case  they  were  involved  in  trouble  resulting  from 
the  war.  Such  had  been  the  position  of  the  Department 
in  the  case  of  Mr.  John  Hays  Hammond,  a  citizen  of  the 
United  States  who  had  been  involved  in  the  Jameson  Raid, 
although  he  had  taken  part  in  an  expedition  which  was 
not  officially  approved  by  Great  Britain  and  which  was 
hostile  to  a  Government  with  which  the  United  States  had 
no  quarrel.1 

On  October  8,  the  day  before  the  Transvaal  ultimatum 
was  presented  to  Great  Britain,  the  British  Ambassador  in 
Washington  confidentially  inquired  whether  in  the  event  of 
an  attack  upon  the  English  forces  by  the  Boers,  rendering 
necessary  the  withdrawal  of  the  British  agent,  the  United 
States  would  allow  its  consul  to  take  charge  of  the  British 
interests  in  the  Transvaal.2  Consent  was  very  properly 
given  on  the  eleventh  that  the  United  States  would  gladly 
allow  its  consul  at  Pretoria  "to  afford  to  British  interests 
in  that  quarter  friendly  and  neutral  protective  offices."8 
On  the  thirteenth  this  courtesy  was  acknowledged  and  the 
information  given  that  the  British  agent  had  withdrawn. 
On  the  same  day  Mr.  McCrum  was  instructed,  "  with  the 
assent  of  the  South  African  Republic,  to  afford  to  British 
interests  the  friendly  protective  offices  usual  in  such  con- 
tingencies."* 

Having  thus  assumed  an  attitude  entirely  in  accord  with 
the  obligations  incumbent  upon  a  neutral,  the  United  States 
refused  to  heed  the  popular  demand  to  urge  upon  Great 
Britain  its  offices  as  mediator  in  a  matter  which  directly 
concerned  the  British  colonial  policy.  Secretary  Hay  prop- 
erly refused  to  involve  the  Administration  in  the  com- 
plications which  would  have  followed  any  official  interro- 

'For.  Rel.,  1896,  pp.  562-581. 
1  For.  Rel.,  1899,  p.  350,  Tower  to  Hay,  Oct.  8,  1899. 
"For.  Rel.,  1899,  p.  350,  Hill  to  Tower,  Oct.  n,  1899. 
4  For.  Rel.,  1899,  p.  351,  Tower  to  Hill,  and  Adee  to  Tower,  Oct. 
13,  1899. 


163]  Neutrality  of  the  United  States.  n 

gation  addressed  to  the  British  Government  with  reference 
to  its  ultimate  intentions  in  South  Africa.  Moreover,  it 
was  authoritatively  stated  that  any  concerted  European 
intervention  would  not  meet  with  favor  in  Washington, 
as  such  action  would  only  tend  to  disturb  general  commer- 
cial relations  by  embroiling  most  of  the  nations  of  the 
world.  Any  attempted  intervention  would  certainly  have 
led  to  a  conflict  of  the  Powers,  and  would  have  involved 
questions  of  national  supremacy,  disturbed  the  balance  of 
power,  and  raised  the  Chinese  question,  in  which  last  the 
United  States  had  an  important  interest.  It  was  a  sound 
policy  therefore  upon  the  part  of  the  United  States  not  to 
encourage  any  intervention  by  European  nations  in  the  af- 
fairs of  Great  Britain  in  South  Africa. 

This  attitude  not  only  reciprocated  the  friendly  feeling 
shown  by  England  during  the  Spanish-American  War,  but 
was  in  strict  accord  with  the  traditional  American  policy 
enunciated  by  Washington.  The  acquisition  of  the  Philip- 
pines had  only  served  to  exemplify  the  soundness  of  this 
doctrine,  and  the  State  Department  was  not  in  a  mood  to 
take  the  initial  steps  which  might  lead  to  added  responsi- 
bilities with  reference  to  matters  which,  in  this  instance 
at  any  rate,  were  not  directly  of  American  concern.  The 
part  to  be  played  by  the  United  States  was  clearly  that  of 
an  impartial  neutral. 

In  his  message  to  Congress  in  1900  President  McKinley 
stated  that  he  was  happy  to  say  that  abundant  opportunity 
had  been  afforded  in  the  situation  at  Pretoria  to  permit  the 
United  States  consul  there  to  show  the  impartiality  of  the 
Government  toward  both  the  combatants.  Developments, 
however,  were  to  show  that  things  had  not  gone  so  smoothly 
there  as  was  supposed  at  the  time. 

On  December  8  the  President  had  appointed  Mr.  Adel- 
bert  Hay,  son  of  the  Secretary  of  State,  to  succeed  Mr. 
McCrum  in  his  position  as  consul  and  instructions  were 
sent  to  him  to  proceed  at  once  to  Pretoria.  Mr.  Hollis, 
the  American  consul  at  Lorenzo  Marques,  was  directed  at 


12  Neutral  Rights  in  the  Anglo-Boer  War.         [164 

the  same  time  to  act  ad  interim  at  Pretoria  after  the  de- 
parture of  Mr.  McCrum  and  until  Mr.  Hay  could  reach 
South  Africa.  On  December  18  Mr.  Hollis  took  charge 
of  all  British  and  American  interests  within  the  Transvaal 
while  still  keeping  an  oversight  of  the  affairs  of  the  United 
States  in  and  around  Lorenzo  Marques. 

Soon  after  the  war  had  begun  Mr.  McCrum  had  re- 
ported to  Washington,  in  reply  to  inquiries  with  reference 
to  the  British  prisoners  in  the  hands  of  the  Boers,  that  it 
was  the  wish  of  the  Republican  Government  that  in  the 
future  all  requests  for  the  payment  of  money  to  officers  or 
other  prisoners,  as  well  as  inquiries  regarding  their  welfare, 
should  come  through  the  regular  military  channels  at  the 
front.  The  Republic  at  the  same  time  intimated  that  it 
could  no  longer  recognize  Mr.  McCrum  in  any  official 
capacity  on  behalf  of  Great  Britain.5  The  British  repre- 
sentative at  once  suggested  that  the  United  States  consul 
be  instructed  to  point  out  to  the  Transvaal  that  such  an 
attitude  was  a  departure  from  the  usual  practice  in  not 
permitting  the  American  Government  to  use  its  friendly 
good  offices  on  behalf  of  the  English  prisoners  of  war. 
Lord  Salisbury  called  attention  to  the  fact  that  during  the 
Crimean  War  "  moneys  "  for  the  British  prisoners  in  Russia 
were  distributed  through  the  Danish  representatives  in  St. 
Petersburg  and  London;  and  that  during  the  Franco-Prus- 
sian War  such  small  sums  of  money  were  handed  to  the 
French  prisoners  in  Germany  through  the  British  Foreign 
Office.  It  was  understood  as  a  matter  of  course  that  re- 
ciprocal privileges  would  be  extended  to  the  Boer  prisoners 
in  the  hands  of  the  English  commanders.6 

Mr.  McCrum,  following  instructions  from  his  Government, 
had  placed  the  English  view  of  the  situation  before  the 
Transvaal  authorities  before  he  left  Pretoria,  and  had  called 
their  attention  to  the  fact  that  for  them  to  permit  the  chari- 
table and  humane  intervention  of  the  United  States  consul 
under  the  circumstances  was  the  regular  course  in  time  of 

6  For.  Rel.,  1900,  p.  619,  Hay  to  Pauncefote,  Nov.  n,  1899. 
6  Ibid.,  p.  619,  Hay  to  Pauncefote,  Nov.  22,  1899. 


165]  Neutrality  of  the  United  States.  13 

war.7  But  not  until  Mr.  Hollis  reached  Pretoria  was  the 
attitude  of  the  Republic  explained.  He  inquired  of  the 
Secretary  of  State  as  well  as  of  the  Secretary  for  Foreign 
Affairs  with  reference  to  the  attitude  he  would  be  allowed 
to  assume  toward  British  interests ;  to  what  extent  he  might 
act  on  behalf  of  British  prisoners  of  war  in  the  Transvaal 
and  Orange  Free  State;  and  how  far  he  might  exercise 
the  usual  consular  functions  on  behalf  of  Great  Britain 
during  the  war. 

The  report  was  made  to  Washington  "  from  many  offi- 
cial and  consular  sources  that  the  late  British  agent  at  this 
capital  [presumably  Mr.  Green]  was  always  a  thorn  in 
the  side  of  this  Government,  and  that  he  is,  in  part,  re- 
sponsible for  this  present  war."8  It  was  pointed  out  that 
since  this  was  the  attitude  of  the  Republican  Government 
there  existed  at  Pretoria  a  decided  aversion  to  the  recogni- 
tion of  any  one  who  might  claim  to  act  as  a  British  agent. 
The  Transvaal  Secretary  of  State  expressed  himself  em- 
phatically upon  the  point :  "  We  got  rid  of  the  British  agent 
on  the  eleventh  of  October  last,  and  God  willing,  we  will 
never  have  another  one  here."9  Mr.  Reitz  even  went  so 
far  as  to  express  the  confident  hope  that  at  the  close  of  the 
war  a  British  minister  and  British  consuls  would  reside  at 
Pretoria,  but  he  was  positive  upon  the  question  of  receiving 
any  one  who  was  known  as  an  agent  of  Great  Britain.  No 
one  who  assumed  this  relation  toward  the  English  Govern- 
ment would  be  acceptable  to  the  Transvaal  and  Orange  Free 
State. 

The  attitude  which  the  Republic  alleged  it  had  been  will- 
ing and  was  ready  to  assume  was  an  unwillingness  to  recog- 
nize the  consul  of  the  United  States  or  any  other  consular 
officer  as  the  official  representative  of  the  British  Govern- 
ment during  the  war;  an  objection  to  the  transmission  of 
the  official  communications  of  the  English  Government  to 
that  of  the  South  African  Republic,  or  of  the  official  des- 

TFor.  Rel.,  1900,  p.  620,  Hay  to  Pauncefote,  Nov.  28,   1900,  and 
Hay  to  Pauncefote,  Apl.  9,  loop. 
•For.  Rel.,  1900,  p.  621,  Hollis  to  Hill,  Feb.  2,  1000. 
•For.  Rel.,  1900,  p.  621,  Hollis  to  Hill,  Feb.  2,  1900. 


14  Neutral  Rights  in  the  Anglo-Boer  War.         [166 

patches  of  the  English  Government  addressed  to  the  British 
prisoners  in  the  hands  of  the  Transvaal,  or  of  "  moneys  " 
or  funds  sent  by  the  British  Government  to  the  English 
prisoners  of  war.  On  the  other  hand  the  Transvaal  authori- 
ties were  not  unwilling  to  allow  the  United  States  consul 
at  Pretoria  to  perform  certain  enumerated  services  in  be- 
half of  all  British  prisoners  of  war  and  their  friends.  No 
objection  was  made  to  the  forwarding  of  letters  and  papers 
sent  by  friends  to  the  prisoners,  and,  under  the  supervision 
of  the  War  Office  of  the  Transvaal,  the  Republic  expressed 
itself  willing  to  permit  the  distribution  of  funds  sent  to 
the  English  prisoners  by  their  friends  at  home.  But  it  was 
understood  that  such  services  would  be  reciprocal,  and  that 
the  Republic  would  have  the  right  to  request  similar  ser- 
vices of  the  American  consular  officers  on  behalf  of  the 
Boer  and  Afrikander  prisoners  in  the  English  possessions. 
The  right  was  reserved  to  revoke  any  and  all  privileges 
to  receive  letters,  papers,  parcels  and  money,  which  were 
enjoyed  by  British  prisoners  in  the  Transvaal,  should  the 
fact  be  sufficiently  proved  that  Boer  or  Afrikander  prisoners 
in  the  hands  of  the  English  authorities  were  not  receiving 
kind  and  humane  treatment,  or  were  being  denied  privileges 
similar  to  those  enjoyed  by  British  prisoners  in  the  Republic. 
All  concessions  on  the  part  of  the  Transvaal  Government 
would  be  instantly  revoked  on  these  grounds  as  sufficient 
reason  and  cause  for  such  action.  The  Republican  Govern- 
ment asserted  that  this  had  been  the  attitude  in  accordance 
with  which  it  had  acted  from  the  commencement  of  the 
war.10 

With  reference  to  the  recall  of  the  American  consul  and 
the  appointment  of  Mr.  Adelbert  Hay,  it  appears  that  there 
had  been  a  certain  amount  of  friction  between  Mr.  McCrum 
and  the  English  censor  at  Durban  concerning  the  consular 
mails.  In  connection  with  this  incident,  and  a  little  un- 
wisely it  would  seem,  Mr.  McCrum  had  reported  unoffici- 
ally that  his  mail  had  been  tampered  with  by  the  censor 

10  For.  Rel.,  1900,  pp.  621-622,  Hollis  to  Reitz,  Jan.  31,  1900,  and 
Reitz  to  Hollis,  Feb.  2,  1900. 


167]  Neutrality  of  the  United  States.  15 

and  had  been  forwarded  to  him  only  after  Colonel  Stowe, 
the  American  consul-general  at  Cape  Town,  had  secured 
its  release.  He  asserted :  "  I  had  the  humiliation,  as  the 
representative  of  the  American  Government,  of  sitting  in 
my  office  in  Pretoria  and  looking  upon  envelopes  bearing 
the  official  seal  of  the  American  Government,  opened  and 
officially  sealed  with  stickers,  notifying  me  that  the  con- 
tents had  been  read  by  the  censor  at  Durban."  And  he 
continues,  "  when  I  accepted  my  post  as  consul  I  knew  noth- 
ing of  any  secret  alliance  between  America  and  Great 
Britain."11  These  charges  brought  forth  in  the  House  of 
Representatives  a  resolution  which  called  upon  the  Presi- 
dent to  furnish  information  as  to  whether  the  consul's  mail 
had  been  opened  and  read  by  the  British  censor  and,  if  so, 
what  steps  had  been  taken  in  the  matter.  Information  was 
also  asked  as  to  what  truth  there  was  in  the  statement  that 
a  secret  alliance  existed  between  the  "  Republic  of  the 
United  States  and  the  Empire  of  Great  Britain."12 

In  response  the  President  reported  through  the  Secretary 
of  State  that  the  Department  had  been  in  regular  communi- 
cation by  mail  and  telegraph  with  Charles  E.  McCrum,  late 
consul  at  Pretoria,  since  his  entrance  upon  the  duties  of 
the  office.  Communications  made  to  him  had  been  answered 
by  him.  His  despatches  forwarded  through  the  consulate 
at  Lorenzo  Marques  had  been  regularly  received  during  his 
incumbency  in  office.  It  was  pointed  out  that  the  only 
instance  of  complaint  had  been  in  November,  when  a  tem- 
porary stoppage  of  the  mails  had  occurred  at  Cape  Town, 
against  which  both  Mr.  McCrum  and  the  consul  at  Lorenzo 
Marques  had  protested.  But  arrangements  had  been  then 
made  for  the  prompt  delivery  of  all  the  consular  mails  to 
the  United  States  consulate  at  Cape  Town  by  which  they 
were  forwarded  to  the  consul  at  Lorenzo  Marques  and 
thence  to  Pretoria.  The  delay  had  continued  only  a  few 
days  and  the  difficulty  had  not  occurred  again.  It  was 
pointed  out  also  that  this  arrangement  had  been  made 

11  H.  R.,  Doc.  458,  56  Cong.,  i  Sess. 

"H.  Res.  149,  56  Cong.,  i  Sess.;  also  H.  Res.  160. 


1 6  Neutral  Rights  in  the  Anglo-Boer  War.         [168 

known  to  both  Mr.  McCrum  and  Mr.  Hollis  as  early  as 
November  16,  and  that  no  obstacle  had  since  existed  to 
prevent  the  unhampered  correspondence  from  Pretoria  to 
Washington.  Moreover,  the  Secretary  of  State  asserted 
that  Mr.  McCrum  had  not  officially  reported  "  any  instance 
of  violation,  by  opening  or  otherwise,  of  his  official  mail 
by  the  British  censor  at  Durban,  or  any  person  or  persons 
whatsoever,  there  or  elsewhere;"13  he  had  not  so  reported 
since  he  left  Pretoria,  although  ample  opportunity  was 
afforded  him  to  do  so  by  mail  or  in  person  when  he  reported 
to  the  Department  on  his  return. 

In  regard  to  the  second  charge  made  by  Mr.  McCrum  it 
seemed  hardly  necessary  to  say  that  there  was  no  truth  in 
the  statement  that  a  secret  alliance  existed  between  Great 
Britain  and  the  United  States;  that  no  form  of  secret  alli- 
ance was  possible  under  the  Constitution  since  all  treaties 
required  the  advice  and  consent  of  the  Senate.  Mr.  Hay 
concluded,  however,  by  emphatically  assuring  the  members 
of  Congress  that  "  no  secret  alliance,  convention,  arrange- 
ment, or  understanding  exists  between  the  United  States 
and  any  other  nation."14 

Mr.  McCrum  later  appeared  before  the  Committee  on 
Foreign  Affairs  in  the  House  of  Representatives  and  stated 
his  side  of  the  case.  He  declared  that  while  at  Pretoria 
he  had  understood  that  the  British  Government  was  in 
possession  of  the  United  States  cable  ciphers  but  he  was 
unable  to  affirm  this  from  personal  knowledge.  He  based 
his  belief,  he  said,  upon  the  fact  that  when  on  No- 
vember 6  he  had  cabled  by  way  of  Durban  to  the  Depart- 
ment asking  for  leave  of  absence  the  incident  had  been 
reported  to  have  been  published  in  a  Durban  paper  on  the 
following  day,  although  he  had  cabled  in  cipher.  He  was 
not  able  to  say,  however,  whether  the  fact  of  his  desiring 
leave  was  actually  published  on  November  7,  as  he  had 
not  seen  the  paper,  but  had  heard  that  the  fact  had  been 
published.  He  asserted  that  the  first  actual  evidence  of  the 

13  H.  R.,  Doc.  458,  56  Cong.,  i  Sess. 
"H.  R.,  Doc.  458,  56  Cong.,  i  Sess. 


169]  Neutrality  of  the  United  States.  17 

opening  of  his  mail  was  in  the  case  of  two  opened  letters 
reaching  him,  but  he  admitted  that  he  had  not  reported  the 
matter  to  the  Department.  When  Mr.  Hay  mentioned  the 
matter  to  Sir  Julian  Pauncefote,  the  British  Ambassador  in 
Washington,  the  English  Government  replied  that  it  had 
no  knowledge  of  the  incident,  and  gave  the  assurance  that 
if  it  had  occurred  it  had  been  contrary  to  instructions. 
Colonel  Stowe  later  informed  Mr.  Hay  that  two  letters  from 
the  consulate  at  Cape  Town,  one  for  Pretoria,  the  other  for 
Lorenzo  Marques,  had  been  opened  by  the  censor  at  Durban, 
but  that  Sir  Alfred  Milner,  the  British  High  Commissioner, 
had  afterward  offered  a  very  satisfactory  apology. 

In  view  of  these  facts  the  committee  of  the  House,  before 
which  Mr.  McCrum  appeared,  made  no  report,  and  when 
Mr.  Adelbert  Hay  reported  that  he  had  failed  to  find  on 
the  files  of  the  consulate  any  evidence  of  the  official  mail 
having  been  tampered  with,  the  incident  was  considered 
closed.  Mr.  Hay  declared  that  as  far  as  he  could  ascertain, 
no  interference  had  occurred  in  the  communication,  either 
telegraphic  or  postal,  between  the  State  Department  and 
the  consulate.16 

The  new  consul  at  Pretoria  also  reported  that  everything 
was  as  satisfactory  as  could  be  expected  under  the  circum- 
stances of  war,  and  his  official  intercourse  with  the  Trans- 
vaal Government  afterwards  fully  justified  this  assertion. 
The  republics  displayed  a  proper  attitude  toward  the  consu- 
late not  only  as  representing  American  interests,  but  as  rep- 
resenting Great  Britain  during  the  course  of  hostilities. 
Every  facility  was  afforded  the  American  consul  for  per- 
forming his  duties.  For  the  efficient  service  he  had  ren- 
dered in  connection  with  the  British  prisoners  he  was 
publicly  thanked  by  the  British  High  Commissioner,  who 
expressed  the  feeling  of  gratitude  which  he  said  existed 
throughout  the  British  Empire  for  the  good  work  which 
had  been  performed  by  both  Mr.  Hay  and  Colonel  Stowe, 
the  latter  at  Cape  Town. 

15  For.  Rel.,  1906,  p.  20,  Hay  to  Pauncefote,  Apr.  9,  1900. 
2 


1 8  Neutral  Rights  in  the  Anglo-Boer  War.         [170 

While  enforcing  the  obligations  of  a  neutral  State  by  an 
attitude  of  strict  impartiality  toward  both  belligerents,  the 
United  States  was  not  inclined  to  allow  popular  sympathy 
for  the  Boers  to  lead  to  complications  with  foreign  nations 
over  a  matter  with  which  it  was  only  remotely  concerned. 
This  position  was  known  to  the  envoys  of  the  Transvaal 
and  Orange  Free  State  before  they  left  Pretoria.  Ample 
opportunity  to  realize  the  situation  had  been  afforded  them 
before  they  left  Europe  for  America  after  an  unsuccessful 
tour  of  the  capitals  of  the  Continent.  Nevertheless,  they 
determined  to  appeal  to  the  United  States,  and  with  this 
purpose  in  view  arrived  in  Washington  on  May  17,  1900. 
A  resolution  introduced  in  the  Senate  by  Mr.  Allen  of  Ne- 
braska on  May  19,  which  would  have  extended  the  privi- 
lege of  the  floor  to  them,  was  laid  on  the  table,16  a  decision 
the  wisdom  of  which  is  unquestionable.  The  Senate  stands 
before  the  world  as  an  important  part  of  the  treaty-making 
power  of  the  United  States.  Such  a  privilege,  if  extended 
to  the  mission,  could  have  meant  nothing  to  foreign  powers 
but  an  official  reception  to  the  envoys  of  a  government  which 
was  not  recognized  as  legitimate  by  its  former  conventional 
suzerain.  It  was  not  the  part  of  the  Senate  to  inquire  into 
the  substance  of  the  past  relations  between  Great  Britain 
and  the  Transvaal.  Especially  was  this  true  since  the 
governmental  position  had  been  declared  early  in  the  war 
and  nothing  had  occurred  to  warrant  any  alteration  in  that 
position.  This  was  the  view  which  President  McKinley 
took  of  the  situation,  and  the  policy  of  dealing  with  the  prob- 
lem was  that  of  the  strictest  neutrality. 

On  May  21  it  was  officially  announced  that  the  delegates 
had  called  by  appointment  at  the  State  Department.  The 
notice  given  out  to  the  press  read :  "  They  were  cordially 
received  and  remained  with  the  Secretary  of  State  for  more 
than  an  hour.  They  laid  before  the  secretary  at  much 
length  and  with  great  energy  and  eloquence  the  merits  of  the 
controversy  in  South  Africa  and  the  desire  of  the  Boer  Re- 

"56  Cong.,  i  Sess.,  Record,  pp.  5735,  5783-86. 


171]  Neutrality  of  the  United  States.  19 

publics  that  the  United  States  should  intervene  in  the  inter- 
ests of  peace  and  use  its  influence  to  that  end  with  the 
British  Government." 17  The  ambition  of  the  envoys  on 
leaving  the  Transvaal  for  Europe  had  been  "  for  the  pur- 
pose of  seeking  recognition  and  intervention,"  but  the  suc- 
cess of  their  mission  at  Washington  was  not  to  be  greater 
than  it  had  been  in  European  capitals.  Although  Mr.  Hay 
received  them  courteously  their  competence  to  treat  directly 
with  the  State  Department  was  not  recognized.  When 
they  realized  this  fact  they  appealed  directly  to  the  people 
in  the  hope  of  bringing  a  certain  amount  of  pressure  to  bear 
upon  the  President  from  that  source.  He  fully  realized, 
however,  that  under  the  circumstances  no  interference  was 
advisable.  A  departure  from  this  policy  would  have  created 
a  precedent  which  might  later  have  been  appealed  to  by  any 
European  government  in  behalf  of  its  subjects  in  this  country. 
As  Presidential  candidate,  however,  William  J.  Bryan,  in 
effect,  if  not  in  express  terms,  promised  a  mediation  that 
would  mean  something  should  the  Democrats  come  into 
power,  and  it  was  hopes  created  by  such  utterances  which 
encouraged  the  Boers  to  believe  that  intervention  on  the 
part  of  the  United  States  was  a  possibility.  Even  the  Sen- 
ate passed  resolutions  of  sympathy  which  only  held  out  a 
vain  hope  and  naturally  caused  a  certain  amount  of  criticism 
in  England.  In  the  end,  however,  the  envoys  became  con- 
vinced that  nothing  was  to  be  hoped  for  in  the  way  of  dicta- 
torial interference  by  the  United  States. 

In  his  message  to  Congress,  in  1899,  three  months  after 
the  war  began,  President  McKinley  had  been  able  to  de- 
clare :  "  This  Government  has  maintained  an  attitude  of 
neutrality  in  the  unfortunate  contest  between  Great  Britain 
and  the  Boer  States  of  Africa.  We  have  remained  faithful 
to  the  precept  of  avoiding  entangling  alliances  as  to  affairs 
not  of  our  direct  concern.  Had  circumstances  suggested  that 
the  parties  to  the  quarrel  would  have  welcomed  any  kindly 
expression  of  the  hope  of  the  American  people  that  war 

"Moore,  Digest  of  Int.  Law,  Vol.  I,  p.  213. 


2O  Neutral  Rights  in  the  Anglo-Boer  War.         [1/2 

might  be  averted,  good  offices  would  have  been  gladly  ten- 
dered." And  in  May,  1900,  after  the  interview  with  the 
Transvaal  delegation,  Mr.  Hay  gave  out  a  statement  through 
his  secretary  in  which  it  was  declared  that  this  entirely  cor- 
rect neutral  attitude  had  been  strictly  adhered  to:  "As  the 
war  went  on  the  President,  while  regretting  the  suffering 
and  the  sacrifices  endured  by  both  of  the  combatants,  could 
do  nothing  but  preserve  a  strict  neutrality  between  them. 
This  has  been  steadfastly  and  constantly  done,  but  there 
never  has  been  a  moment  when  he  would  have  neglected  any 
favorable  occasion  to  use  his  good  offices  in  the  interest  of 
peace."  18  Mr.  Hay  also  pointed  to  the  fact  that  on  March 
10,  1900,  at  the  request  of  the  Republics,  the  United  States 
consul  at  Pretoria  had  communicated  with  his  Government 
with  a  view  to  the  cessation  of  hostilities,  and  that  the  same 
proposal  was  made  to  European  powers  through  their  re- 
spective consuls. 

The  request  of  the  Transvaal  was  at  once  despatched  to 
London,  and  the  earnest  hope  was  expressed  by  the  Presi- 
dent that  a  way  might  be  found  to  bring  about  peace,  with 
the  intimation  that  he  "  would  be  glad  to  aid  in  any  friendly 
manner  to  promote  so  happy  a  result."  The  Transvaal  was 
promptly  informed  of  this  action  and  the  United  States 
representative  in  London  communicated  the  President's  in- 
structions to  Lord  Salisbury.  In  answer  he  was  requested 
to  "  thank  the  President  for  the  friendly  interest  shown  by 
him,"  but  it  was  unmistakably  declared  that  "  Her  Majesty's 
Government  could  not  accept  the  intervention  of  any 
power."19  This  reply  was  communicated  to  Pretoria,  and 
no  further  steps  were  taken,  since  any  insistence  upon  the 
part  of  the  United  States  would  have  been  an  unfriendly  act. 

In  justification  of  the  action  of  the  President,  in  view  of 
the  popular  feeling  that  more  urgent  pressure  might  have 
been  used  to  cause  the  cessation  of  hostilities,  Secretary  Hay 
clearly  showed  that  the  United  States  Government  was  the 

"Moore,  Digest  of  Int.  Law,  Vol.  VII,  p.  19. 
"Moore,  Digest  of  Int.  Law,  Vol.  VII,  p.  20. 


173]  Neutrality  of  the  United  States.  21 

only  one  of  all  those  approached  by  the  republics  which  had 
even  tendered  its  good  offices  in  the  interest  of  peace.  He 
called  attention  to  the  fact  that  despite  the  popular  clamor 
to  the  contrary  the  action  of  the  Government  was  fully  in 
accord  with  the  provisions  of  the  Hague  Conference  and 
went  as  far  as  that  Convention  warranted.  A  portion  of 
Article  III  of  that  instrument  declares :  "  Powers,  strangers 
to  the  dispute,  may  have  the  right  to  offer  good  offices  or 
mediation,  even  during  the  course  of  hostilities,"  but  Article 
V  asserts,  "  The  functions  of  the  mediator  are  at  an  end 
when  once  it  is  declared  either  by  one  of  the  parties  to  the 
dispute  or  by  the  mediator,  himself,  that  the  means  of  con- 
ciliation proposed  by  him  are  not  accepted."  20  Obviously 
any  further  action  on  the  part  of  the  United  States  was  not 
required  under  the  circumstances,  and  Secretary  Hay  seems 
fully  justified  in  his  statement  that  "  the  steps  taken  by  the 
President  in  his  earnest  desire  to  see  an  end  to  the  strife 
which  caused  so  much  suffering  may  already  be  said  to  have 
gone  to  the  extreme  limit  permitted  to  him."  Moreover, 
had  the  President  preferred  not  to  present  to  Great  Britain 
the  Republic's  request  for  good  offices,  his  action  could  have 
been  justified  by  the  conditions  under  which  the  representa- 
tives of  the  United  States  at  the  Hague  signed  that  conven- 
tion. At  that  time  the  express  declaration  was  made  that 
"  Nothing  contained  in  this  Convention  shall  be  so  construed 
as  to  require  the  United  States  of  America  to  depart  from 
its  traditional  policy  of  not  intruding  upon,  interfering  with, 
or  entangling  itself  with  questions  of  policy  or  internal 
administration  of  any  foreign  State."21 

The  final  utterance  of  the  President  in  regard  to  the  mis- 
sion of  the  Boers  was  the  conclusive  statement  made  through 
Secretary  Hay:  "The  President  sympathizes  heartily  in  the 
desire  of  all  the  people  of  the  United  States  that  the  war 
.  .  .  may,  for  the  sake  of  both  parties  engaged,  come  to  a 
speedy  close ;  but  having  done  his  full  duty  in  preserving  a 

30  Moore,  Digest  of  Int.  Law,  Vol.  VII,  p.  23. 
21  Moore,  Digest  of  Int.  Law,  Vol.  VII,  p.  21. 


22  Neutral  Rights  in  the  Anglo-Boer  War.         [174 

strictly  neutral  position  between  them  and  in  seizing  the  first 
opportunity  that  presented  itself  for  tendering  his  good 
offices  in  the  interests  of  peace,  he  feels  that  in  the  present 
circumstances  no  course  is  open  to  him  except  to  persist 
in  the  policy  of  impartial  neutrality.  To  deviate  from  this 
would  be  contrary  to  all  our  traditions  and  all  our  national 
interests,  and  would  lead  to  consequences  which  neither  the 
President  nor  the  people  of  the  United  States  could  regard 
with  favor."22 

The  attitude  of  the  United  States  in  the  immediate  vicin- 
ity of  the  war  as  well  as  the  manner  in  which  the  envoys 
of  the  Transvaal  were  received  in  Washington  rendered 
criticism  impossible  with  reference  to  the  fulfilment  of  the 
obligations  of  a  neutral  State.  But  serious  charges  were 
repeatedly  made  by  the  Transvaal  sympathizers  with  refer- 
ence to  the  use  to  which  American  ports  and  waters  were 
put  by  British  vessels  or  British-leased  transports  plying 
between  the  United  States  and  South  Africa.  It  was 
alleged  that  Great  Britain  was  able  to  create  here  a  base  of 
warlike  supplies,  and  thus  to  obtain  material  aid  in  her 
operations  against  the  Boer  forces.  The  probability  of  the 
truth  of  the  Transvaal's  allegations  would  seem  at  first 
thought  to  be  slight  considering  the  distance  of  the  scene 
of  war  from  the  coasts  of  the  United  States,  but  upon  closer 
inspection  these  charges  become  more  worthy  of  belief. 
That  warlike  supplies  were  actually  transported  from  at 
least  one  of  the  ports  of  the  United  States  under  such  a 
systematic  scheme  as  to  constitute  a  base  of  hostile  supplies 
for  the  English  forces  in  South  Africa,  would  seem  to 
be  established. 

Individual  commercial  transactions  with  belligerents 
always  occur,  and  it  is  not  the  part  of  neutral  governments 
to  assume  responsibility  for  all  such  transactions,  but  the 
principles  of  the  international  law  of  the  present  day  do 
require  all  neutral  states  to  see  to  it  that  their  respective 
territories  are  not  made  bases  for  hostile  operations. 

23  Moore,  Digest  of  Int.  Law,  Vol.  VII,  p.  21. 


1 75]  Neutrality  of  the  United  States.  23 

A  few  minor  incidents  showed  that  the  obligations  of 
neutrality  would  be  enforced  by  the  United  States  when  it 
became  apparent  to  the  Government  that  the  neutrality  laws 
were  being  evaded.  In  Cincinnati  a  Frenchman  giving  his 
name  as  Pierrot  was  summoned  before  the  United  States 
Attorney  on  a  charge  of  a  violation  of  neutral  restrictions. 
He  had  been  known,  it  seems,  as  a  recruiting  officer  for 
the  Transvaal  Government,  but  avowed  that  he  had  en- 
gaged men  only  for  the  Boer  hospital  corps  and  not  for  the 
army  of  the  Republics.  The  warning  that  he  must  cease 
enlisting  men  even  for  this  branch  of  the  republican  service 
proved  sufficient  in  this  case,  but  undoubtedly  such  recruiting 
on  a  small  scale  continued  to  evade  detection. 

Later,  the  New  York  courts  restrained  the  steamer  Ber- 
muda from  leaving  the  port  upon  the  application  of  a  British 
subject,  who  alleged  that  he  had  been  informed  that  the 
Bermuda  was  carrying  contraband  to  the  Transvaal.  After 
a  detention  of  five  days  the  ship  was  allowed  to  sail  because 
it  was  not  shown  that  the  allegation  had  any  foundation 
in  fact. 

Toward  the  close  of  November,  1900,  a  charge  of  a  more 
serious  nature  was  made.  It  was  reported  that  a  British 
remount  establishment  was  operating  in  the  United  States 
and  had  just  purchased  fifty  thousand  horses  and  mules 
for  the  British  forces  in  South  Africa,  and  considerable 
attention  to  this  alleged  violation  of  neutral  obligations  was 
drawn  by  that  portion  of  the  press  which  was  in  sympathy 
with  the  Boers.  A  resolution  was  adopted  by  the  House 
of  Representatives  calling  upon  the  President  to  furnish 
information  "  whether  our  ports  or  waters  had  been  used 
for  the  exportation  of  horses,  mules,  and  other  supplies 
for  use  in  South  Africa,  and  if  so,  to  what  extent  and 
what  steps  had  been  taken  to  prevent  such  a  use  being 
made  of  neutral  territory  in  time  of  war."23  The  request 
was  also  made  that  full  information  be  furnished  with  refer- 
ence to  the  number  of  horses  and  mules  which  had  been 

aH.  Res.  414,  418,  56  Cong.,  2  Sess.,  Feb.  28,  1901. 


24  Neutral  Rights  in  the  Anglo-Boer  War.         [176 

cleared  from  the  ports  of  the  United  States  since  the  begin- 
ning of  the  war,  with  a  detailed  statement  of  the  shipments 
from  each  port  and  the  dates  of  such  clearances. 

The  reply  submitted  to  Congress  was  that  the  ports  of  the 
United  States  had  been  used  for  the  exportation  of  horses 
and  mules  and  other  supplies  for  use  in  South  Africa ;  that 
between  October,  1899,  and  January  31,  1901,  the  value  of 
such  shipments  had  amounted  to  $26,592,692 ;  that  no  steps 
had  been  taken  to  prevent  the  "  lawful  exportation  of  horses, 
mules,  and  other  supplies  to  South  Africa;"  and  that  the 
number  of  horses  and  mules  shipped  from  the  ports  of  the 
United  States  during  this  period  had  been  76,632.  It  was  not 
practicable,  it  was  asserted,  to  give  the  shipments  from 
each  port  and  the  dates  of  such  shipments  without  examin- 
ing the  copies  of  the  manifests  of  each  vessel  that  had 
cleared  for  South  Africa.  Such  an  examination  and  com- 
pilation could  not  be  presented  to  Congress  before  its  ad- 
journment, although  copies  of  the  clearance  papers  were 
filed  with  the  collectors  of  the  customs  at  the  different  ports 
of  the  country.24 

In  the  same  report  it  was  shown  that  of  the  entire  ex- 
ports to  South  Africa  during  this  period  a  large  proportion 
had  been  of  warlike  supplies,  if  horses  and  mules  for  army 
purposes  can  be  considered  warlike  in  character;  28,598 
horses  valued  at  $2,698,827;  48,034  mules  valued  at  $4,611,- 
365.  Gunpowder  to  the  value  of  $1472  had  also  been  ex- 
ported ;  other  explosives  to  the  value  of  $7073,  and  firearms 
valued  at  $924,  in  all  $7,310,661  worth  of  such  supplies  ex- 
ported to  one  or  both  of  the  belligerents  in  South  Africa. 
Possibly  the  larger  proportion  of  the  gunpowder,  other  ex- 
plosives, and  firearms  was  run  into  the  Transvaal  by  way 
of  Delagoa  Bay  as  contraband  under  the  usual  risks,  or 
was  used  for  purposes  apart  from  the  war,  but  with  refer- 
ence to  the  supplies  for  the  British  army  it  would  seem  that 
a  very  free  use  was  made  of  the  ports  and  waters  of  the 
United  States.  One  reason  why  the  English  Government 

24  H.  R.,  Doc.  498,  56  Cong.,  2  Sess. 


177]  Neutrality  of  the  United  States.  25 

was  able  to  supply  its  armies  in  South  Africa  with  horses 
and  mules  in  such  large  numbers  may  have  been  the  fact  that 
a  better  market  supply  existed  in  this  country,  but  it  is  more 
probable  that  the  evasion  of  the  strictest  neutral  require- 
ments was  easier  here  than  elsewhere.  The  distance  from 
the  scene  of  war,  although  it  involved  an  additional  cost  for 
transportation,  also  rendered  an  evasion  of  the  require- 
ments of  neutrality  less  conspicuous.  The  supply  of  horses 
and  mules  in  the  European  market  was  scant,  especially  in 
the  class  of  animals  which  was  needed,  but  it  seems  obvious 
that  the  motive  which  actuated  the  purchases  was  rather  the 
greater  ease  in  evading  neutral  prohibitions  than  the  desire 
to  secure  a  better  market  at  a  distance  of  ten  thousand 
miles  from  the  seat  of  war.  Possibly  both  motives  actuated 
the  purchases,  but  it  is  nevertheless  true  that  the  United 
States  ports  were  used  to  a  far  greater  extent  than  those 
of  any  other  neutral  Government.  The  last  statement  is 
borne  out  by  the  Report  of  the  Royal  Commission  on  the 
War  in  South  Africa,  which  shows  that  from  November, 
1899,  to  June,  1902,  inclusive,  no  fewer  than  191,363  horses 
and  mules  were  shipped  from  the  ports  of  the  United  States 
for  the  British  forces  in  South  Africa,  aggregating  a  total 
cost  to  Great  Britain  of  approximately  $20,175,775.  The 
entire  cost  in  the  United  States  and  elsewhere  for  such 
purchases  at  the  end  of  July,  1902,  amounted  to  $52,000,000 
in  round  numbers.  The  entire  cost  incurred  within  the 
United  States  was  greater  than  that  incurred  in  any  other 
country.  In  Hungary  the  cost  to  Great  Britain  for  horses 
and  mules  was  $8,203,505;  in  Spain  $1,667,695;  in  Italy 
$688,690;  in  the  Argentine  Republic,  the  British  colonies 
and  elsewhere,  $2i,284,335.28 

In  view  of  this  undoubted  use  of  the  ports  and  waters  of 
the  United  States  by  one  of  the  belligerents  in  a  war  toward 
which  a  neutral  attitude  had  been  declared,  it  may  be  in- 
quired how  far  the  condition  of  affairs  was  known  to  the 
Administration  and  what  opportunity  there  was  for  execu- 

*  Sessional  Papers  of  the  House  of  Commons,  C.  1792  (1903), 
p.  260. 


26  Neutral  Rights  in  the  Anglo-Boer  War.         [178 

tive  action,  especially  with  reference  to  the  allegation  made 
by  the  Transvaal  that  the  port  of  New  Orleans  was  used  as 
a  base  of  warlike  supplies  for  the  British  forces. 

On  April  10,  1902,  a  resolution  of  the  House  of  Repre- 
sentatives called  upon  the  President  for  copies  of  "  any 
report  and  communication  of  the  Governor  of  Louisiana, 
together  with  all  accompanying  affidavits,  documents  and 
communications  concerning  the  shipments  of  horses,  mules, 
and  other  supplies  from  Louisiana  to  the  seat  of  war  in 
South  Africa."26  In  response  a  report  of  Secretary  Hay 
disclosed  the  fact  that  on  February  i,  1902,  a  certain  Samuel 
Pearson  had  appealed  to  the  President  against  the  use  to 
which  Great  Britain  had  been  allowed  to  put  the  ports  of 
the  United  States  in  supplying  her  armies  in  South  Africa. 
Pearson  had  affirmed  that  "the  port  of  New  Orleans  was 
being  made  the  basis  of  military  operations  and  the  port 
and  waters  for  the  purpose  of  the  renewal  and  augmentation 
of  military  supplies  for  the  British  army."  He  further 
alleged  that  the  attention  of  the  courts  had  been  called  to 
the  matter  and  the  United  States  circuit  court  for  the  east- 
ern district  of  Louisiana  had  declared  that  the  case  was  not 
within  the  cognizance  of  the  court  since  the  matter  could 
be  taken  up  only  by  the  executive  branch  of  the  govern- 
ment.27 In  making  his  plea  directly  to  the  President,  Pear- 
son asserted  that  at  the  port  of  Chalmette,  a  few  miles 
below  New  Orleans,  a  British  post  had  been  established ; 
that  men  and  soldiers  had  been  assembled  there  and  were 
daily  engaged  in  warlike  operations  not  only  for  the  re- 
newal and  augmentation  of  military  supplies,  but  for  the 
recruitment  of  men.  He  alleged  that  no  concealment  was 
made  of  the  facts  as  he  had  stated  them ;  that  although  the 
English  officers  did  not  appear  in  uniform  war  was  actually 
being  carried  on  in  behalf  of  the  British  Government  from 
the  territory  of  the  United  States.  He  concluded:  "With 
every  respect  for  the  authority  of  the  United  States  Gov- 
ernment, may  I  not  consider  your  silence  or  inaction  the 

24  H.  R.,  Doc.  568,  57  Cong.,  i  Sess.,  p.  i. 
27  Pearson  v.  Parson,  108  Fed.  Rep.  461. 


1 79]  Neutrality  of  the  United  States.  27 

equivalent  of  consent  for  me  to  stop  the  further  violation 
of  the  neutrality  laws  of  this  port,  or  to  carry  on  war  here 
for  the  burghers."28 

The  President  referred  the  matter  to  the  Mayor  of  New 
Orleans  with  the  intimation  that  a  breach  of  the  peace  was 
threatened.  The  Mayor  shifted  the  responsibility  to  the 
Governor  of  the  State  on  the  ground  that  the  acts  com- 
plained of  were  alleged  to  have  been  committed  in  the  par- 
ish of  St.  Bernard  and  consequently  outside  the  jurisdic- 
tion of  the  city  authorities.  Finally,  under  the  orders  of 
the  Governor  the  Sheriff  of  St.  Bernard  parish  made  an 
investigation  and  reported  that  Pearson's  statements  had 
been  incorrect  in  a  number  of  points.29  It  was  admitted 
that  mules  and  horses  had  been  and  were  then  being  loaded 
at  Port  Chalmette  for  the  British  Government  either  di- 
rectly or  indirectly;  that  the  operation  was  being  carried 
out  by  local  men  all  of  whom  were  citizens  of  the  United 
States ;  that  the  work  was  being  supervised  by  Englishmen 
who  might  or  might  not  be  officers  of  the  British  army,  al- 
though none  of  them  wore  the  uniform  of  Great  Britain.  But 
the  Sheriff  positively  asserted  that  a  British  post  with  men 
and  soldiers  was  not  established  at  the  port ;  that  no  recruit- 
ing of  men  was  taking  place  within  the  parish ;  that  the  only 
men  taken  on  the  ships  were  muleteers  who  were  employed 
in  the  city  of  New  Orleans  by  the  contractors ;  that  these 
men  were  taken  on  board  the  ships  when  in  mid-stream  by 
tugs  which  set  out  from  the  city  wharves. 

In  a  personal  interview  "  General "  Pearson  made  the 
same  charges  to  the  Governor  that  he  had  made  in  his  letter 
to  the  President.  He  asked  that  he  be  allowed  to  offer 
forcible  resistance  to  the  shipments  to  South  Africa,  and 
to  the  enlisting  or  employing  of  men  as  muleteers,  who,  he 
alleged,  were  later  incorporated  in  the  British  army.  This 
interview  took  place  the  day  following  the  Sheriff's  letter 
partially  denying  the  charges  to  the  Governor,  and  the  latter 

"H.  R.,  Doc.  568,  57  Cong.,  i  Sess.,  p.  3. 

"H.  R.,  Doc.  568,  57  Cong.,  i  Sess.,  p.  4;  Nunez,  Sheriff  of  St. 
Bernard,  to  Heard,  Governor  of  Louisiana,  Feb.  28,  1902. 


28  Neutral  Rights  in  the  Anglo-Boer  War.         [180 

was  not  disposed  to  take  any  action  in  the  matter  until  proof 
of  the  accuracy  of  the  averments  was  produced,  although  the 
facts  which  were  alleged  had  become  widely  known. 

The  attitude  of  the  Administration  with  reference  to 
Pearson's  letter,  it  was  believed  by  the  press,  was  not  of  a 
character  to  inspire  great  confidence  in  the  strict  perform- 
ance of  neutral  duties.  To  ignore  an  allegation  of  so  fla- 
grant a  character  as  the  breach  of  neutrality,  it  was  declared, 
constituted  a  disregard  of  American  ideals  in  the  interest 
of  British  imperialism  which  could  not  be  excused  by  jocu- 
lar references  to  "  General "  Pearson's  request  to  the  Presi- 
dent "  to  either  put  an  end  to  this  state  of  affairs  or  permit 
me  to  strike  one  blow."30 

It  was  pointed  out  that  the  problem  raised  by  Pearson 
was  not  one  that  might  be  laughed  out  of  the  White  House, 
but  was  the  serious  question  whether  the  British  Govern- 
ment should  any  longer  be  permitted,  in  violation  of  Amer- 
ican neutrality,  to  use  an  American  city  and  port  as  a  base 
of  warlike  operations  against  a  friendly  people.  The  news- 
papers, too,  had  made  public  the  movements  of  the  English 
army  officers  in  charge  of  the  shipments.  It  seems  that  the 
base  of  operations  at  first  used  by  Great  Britain  was  South- 
port,  but  that  Chalmette  had  later  been  selected.  The  effi- 
ciency of  the  latter  station  was  reported  upon  in  March, 
1902,  by  General  Sir  Richard  Campbell  Stewart  of  the 
British  army.  Everything  pertaining  to  the  efficiency  of 
the  transportation  service  was  carefully  inspected  on  behalf 
of  the  British  Government.  Colonel  DeBergh,  who  was  in 
command  of  the  remount  service  in  the  United  States,  de- 
clared that  he  had  not  received  orders  from  the  British  War 
Office  to  discontinue  the  shipments,  and  that  they  would  be 
continued  "unless  General  Pearson  and  the  Boer  army 
drive  our  garrison  away."31 

The  evidence  which  Pearson  was  able  to  place  before  Gov- 
ernor Heard  and  which  the  latter  laid  before  the  President 
seemed  to  substantiate  the  fact  that  at  least  one  of  the  ports 

"The  Republic  of  Chicago,  Feb.  15,  1902. 
The  New  Orleans   Picayune,  Mar.  28,   1902. 


1 8 1]  Neutrality  of  the  United  States.  29 

of  the  United  States  had  been  constantly  used  and  was  then 
being  used  as  a  base  of  military  transportation  to  the  British 
forces  in  South  Africa.  It  was  shown  that  William  B. 
Leonard,  of  New  Orleans,  had  contracted  with  Major  H.  J. 
Scobell,  representing  the  British  Government,  for  the  pur- 
chase of  mules  to  be  shipped  to  South  Africa  for  military 
purposes.  The  contract  had  been  signed  in  October,  1899, 
and  during  the  months  from  October,  1899,  to  May,  1900, 
large  numbers  had  been  shipped  to  South  Africa  under  the 
immediate  direction  of  British  army  officers.32  P.  B.  Lynch 
made  affidavit  that  he  had  been  employed  as  clerk  and  book- 
keeper in  the  bureau  of  the  British  remount  service  in  New 
Orleans  from  December,  1899,  to  September,  1901.  He 
explained  the  operations  of  the  remount  service  as  well  as 
its  methods,  and  indicated  clearly  the  direct  connection  of 
regularly  appointed  officers  of  the  British  army  with  the 
purchase  and  shipment  of  horses  and  mules  to  South  Africa. 
The  purchases,  it  seems,  were  made  at  different  points  in 
the  country  and  afterward  assembled  at  a  place  designated 
by  the  officer  in  charge  in  New  Orleans.  The  British  army 
brand  was  then  placed  upon  the  animals,  which  were  imme- 
diately consigned  to  the  British  officer  in  New  Orleans  but 
without  giving  his  military  title.  They  were  then  trans- 
ferred to  ships  the  charter  parties  of  which  were  agents  of 
the  English  Government.  It  was  shown  that  the  ships' 
agents  usually  employed  muleteers  taken  on  by  tugs  from 
the  city  of  New  Orleans,  and  it  was  proved  that  the  whole 
operation  was  controlled  by  English  army  officers  who  were 
detailed  from  London  or  from  South  Africa  for  the  pur- 
pose.33 

The  testimony  of  Charles  J.  Cole  showed  that  as  foreman 
in  charge  of  seventy  or  more  men  he  had  made  six  trips  to 
South  Africa  in  the  service  of  the  British  Government  or 
of  its  agents.  His  testimony  was  substantiated  by  certifi- 
cates for  seamen  discharged  before  the  superintendent  of 

"Leonard  v.  Sparks  Bros.  &  McGee,  Civil  District  Court,  Parish 
of  New  Orleans,  Division  E,  No.  62,770,  Feb.  24,  1902. 
MH.  R.,  Doc.  568,  57  Cong.,  i  Sess.,  p.  9;  also  pp.  10-13  passim. 


30  Neutral  Rights  in  the  Anglo-Boer  War.         [182 

a  mercantile  marine  office  in  the  British  Empire,  a  British 
consul,  or  a  shipping  officer  on  board  the  vessel  on  which 
he  had  sailed.  He  had  been  employed  on  the  transports 
Prah,  Montcalm,  Knight  Bachelor,  Montezuma,  and  Ro- 
setta,  all  engaged  in  transporting  horses  and  mules  to  the 
British  army  in  South  Africa.  He  testified  that  the  trans- 
ports were  in  charge  of  regular  officers  of  the  English  army 
and  that  from  them  all  orders  were  received.  He  also 
avowed  that  many  of  the  men  were  urged  and  solicited  by 
the  officers  to  join  the  British  army,  and  were  unable  to 
obtain  their  pay  unless  they  complied  with  the  request.34 

The  affidavit  of  R.  J.  Tourres  showed  that  he  had  served 
on  the  ship  Milwaukee.  He  averred  that  the  ship's  articles 
were  signed  by  him  before  the  vice-consul  of  the  British 
Government;  that  he  was  finally  referred  to  an  officer  of 
the  English  army  for  duty  and  acted  under  his  orders  during 
the  voyage  from  New  Orleans  to  Cape  Town ;  that  when  the 
vessel  was  not  allowed  to  land  its  cargo  at  that  place  on 
account  of  the  plague  the  consignment  of  horses  and  mules 
for  the  British  army  was  delivered  at  Durban  to  English 
officers  in  uniform;  that  he  was  not  allowed  to  go  ashore 
except  upon  the  condition  of  signing  with  the  recruiting 
officer  and  joining  the  British  army ;  that  during  the  entire 
voyage  a  British  military  officer  in  uniform  controlled  the 
ship's  crew;  and  that  among  the  men  the  Milwaukee  was 
known  as  a  transport  under  the  direct  command  of  regularly 
detailed  officers  of  the  English  army.85 

The  testimony  of  a  number  of  other  witnesses  sworn 
before  the  commissioner  for  the  eastern  district  of  Louisiana 
showed  that  the  wages  of  the  men  employed  upon  the  ship 
Montcalm  had  been  refused  by  the  captain  unless  they 
would  agree  to  enlist  in  the  British  army,  but  as  American 
citizens  they  had  refused  to  enlist  and  had  demanded  the 
wages  due  them  under  the  ship's  articles.  August  Nozeret, 

84  Pearson  et  al.  v.  Parson  et  al.,  United  States  Circuit  Court, 
Eastern  District  of  Louisiana;  also  H.  R.,  Doc.  568,  57  Cong.,  i 
Sess.,  p.  20. 

88  Sworn  to  before  notary  public  Mch.  21,  1902.  H.  R.,  Doc.  568, 
57  Cong.,  i  Sess.,  p.  21. 


183]  Neutrality  of  the  United  States.  31 

an  American  citizen,  foreman  of  a  corps  of  muleteers  on 
board  the  Montcalm,  testified  that  he  was  told  by  the  ship's 
officers  that  the  only  way  to  secure  his  discharge  at  Port 
Elizabeth  was  to  have  a  recruiting  officer  vouch  for  his 
enlisting  in  the  British  army ;  and  that  he  complied  with  this 
demand  and  escaped  enlistment  only  by  pretending  to  be 
physically  unable  to  count  the  number  of  perforations  in  a 
card  when  required  to  do  so  as  a  test  of  sight  at  the  recruit- 
ing office.  The  affiant  was  able  to  say  from  his  own  per- 
sonal knowledge  that  certified  discharges  were  not  given 
unless  the  men  were  willing  to  enlist  in  the  English  army.88 
An  abundance  of  other  evidence  to  the  same  effect  was  pro- 
duced, and  it  was  shown  that  both  the  Montcalm  and  the 
Milwaukee  were  under  the  direct  control  of  the  British  war 
authorities.  Both  had  their  official  numbers  painted  from 
their  hulls  before  entering  the  Portuguese  harbor  of  Beira. 

The  evidence  which  was  thus  placed  before  the  President 
would  seem  to  show  that  the  spirit  at  any  rate  of  the  neu- 
trality laws  of  the  United  States37  had  been  violated,  and 
that  this  violation  had  been  systematically  carried  out  by 
the  British  Government  and  not  by  individual  citizens  merely 
as  a  commercial  venture. 

The  first  section  of  the  neutrality  laws  which  were  passed 
by  Congress  in  1818  defines  the  offense  of  accepting  a 
foreign  commission  and  lays  down  the  penalty  for  such  an 
offense.  The  second  section  forbids  any  person  within  the 
territory  of  the  United  States  to  enlist  in  a  foreign  service 
"as  soldier,  or  as  a  mariner,  or  seaman,  on  board  of  any 
vessel  of  war,  letter  of  marque,  or  privateer."  The  three 
following  sections  prohibit  the  arming  of  a  vessel  to  cruise 
against  a  people  at  peace  with  the  United  States,  or  against 
the  citizens  of  the  United  States,  or  the  augmentation  of  the 
force  of  any  foreign  vessel  of  war.  The  next  prohibits 
military  expeditions  of  any  kind.  This  section  reads : 

*  Cramer  et  al.  v.  S.  S.  Montcalm,  United  States  District  Court, 
Eastern  District  of  Louisiana,  in  Admiralty,  No.  13,639;  also  H. 
R.,  Doc.  568,  57  Cong.,  i  Sess.,  pp.  22-23. 

Revised   Statutes,   Title   LXVII,   Sections   5281-5291,   inclusive. 


32  Neutral  Rights  in  the  Anglo-Boer  War.         [184 

"  Every  person  who,  within  the  territory  or  jurisdiction  of 
the  United  States,  begins,  or  sets  on  foot,  or  provides  or 
prepares  the  means  for,  any  military  expedition  or  enter- 
prise, to  be  carried  on  from  thenee  against  the  territory  or 
dominions  of  any  foreign  prince,  state,  colony,  district  or 
people,  with  whom  the  United  States  are  at  peace,  shall  be 
deemed  guilty  of  a  misdemeanor,  and  shall  be  fined  not 
exceeding  $3,000,  and  imprisoned  not  more  than  three 
years." 38 

Section  5287  provides  for  the  enforcement  of  the  fore- 
going provisions.  It  leaves  the  cognizance  of  all  complaints 
in  the  hands  of  the  several  district  courts,  but  empowers  the 
President  to  employ  the  land  and  naval  forces  to  enforce  all 
of  the  restrictions  embodied  in  the  neutrality  provisions. 
The  following  section  empowers  the  President  to  compel 
foreign  vessels  "to  depart  the  United  States  in  all  cases  in 
which,  by  the  laws  of  nations,  or  by  the  treaties  of  the 
United  States  they  ought  not  to  remain  within  the  United 
States."  Section  5289  requires  that  a  foreign  armed  vessel 
shall  give  bond  on  clearance.  Section  5290  empowers  the 
collectors  of  the  customs  to  detain  foreign  vessels :  "  The 
several  collectors  of  the  customs  shall  detain  any  vessel 
manifestly  built  for  warlike  purposes,  and  about  to  depart 
the  United  States,  the  cargo  of  which  principally  consists 
of  arms  and  munitions  of  war,  when  the  number  of  men  on 
board,  or  circumstances  render  it  probable  that  such  vessel 
is  intended  to  be  employed  by  the  owners  to  cruise  or  commit 
hostilities  upon  the  subjects,  citizens  or  property  of  any 
colony,  district  or  people  with  whom  the  United  States  are 
at  peace,  until  the  decision  of  the  President  is  had  thereon, 
or  until  the  owner  gives  such  bond  and  security  as  is  required 
of  the  owners  of  armed  vessels  by  the  preceding  section." 
Section  5291  defines  the  construction  to  be  put  upon  the 
neutrality  laws.  They  are  not  to  be  construed  to  extend  to 
any  subject  or  citizen  of  any  foreign  State  who  is  only 
transiently  within  the  United  States,  nor  directly  to  be  con- 

88  Sec.   5286. 


185]  Neutrality  of  the  United  States.  33 

strued  in  such  a  way  as  to  prevent  the  prosecution  or  punish- 
ment of  treason,  or  of  any  piracy  defined  by  the  laws  of  the 
United  States.  Possibly  the  alleged  unneutral  acts  in  the 
territorial  waters  of  the  United  States  did  not  fall  within 
the  strict  letter  of  the  restrictions  contained  in  these  laws. 
But  if  the  provisions  of  1818  are  construed  so  as  to  require 
the  maintenance  of  a  perfect  neutrality  it  would  seem  that 
they  were  evaded  in  the  transactions  which  were  permitted 
at  the  port  of  New  Orleans. 

In  this  connection  the  neutrality  clause  of  the  Treaty  of 
Washington  is  of  interest.  This  treaty  was  signed  in  1871 
by  Great  Britain  and  the  United  States  and  is  illustrative  of 
the  requirements  of  neutrality  as  understood  by  these  two 
nations  should  either  be  at  war  with  a  third  party.  For  the 
immediate  purposes  of  war  the  allied  republics  of  South 
Africa  by  the  fact  of  their  recognized  belligerent  status 
possessed  rights  equal  in  international  law  to  those  held  by 
Spain  or  by  the  United  States  with  reference  to  third  powers 
during  the  Spanish- American  War.  On  April  26,  1898,  the 
day  after  this  war  was  declared,  the  British  declaration  of 
neutrality  referred  to  the  Treaty  of  Washington  as  embody- 
ing the  terms  upon  which  a  neutral  attitude  should  be  ob- 
served :  "  A  neutral  government  is  bound  .  .  .  not  to  per- 
mit or  suffer  either  belligerent  to  make  use  of  its  ports  or 
waters  as  the  base  of  naval  operations  against  the  other,  or 
for  the  purpose  of  the  renewal  or  augmentation  of  military 
supplies  of  arms,  or  the  recruitment  of  men,  ...  to  exercise 
due  diligence  in  its  own  ports  and  waters,  and  as  to  all  per- 
sons within  its  own  jurisdiction,  to  prevent  any  violation  of 
the  foregoing  obligations  and  duties."88 

Illegal  enlistment  was  clearly  defined  as  understood  by 
Great  Britain :  "  If  any  person  .  .  .  being  a  British  subject, 
within  or  without  Her  Majesty's  dominions,  accepts  or 
agrees  to  accept  any  commission  or  engagement  in  the  mili- 
tary or  naval  service  of  any  foreign  state  at  war  with  any 

**Art.  VI;  London  Gazette  Extraordinary,  April  26,  1898:  For. 
Rel.,  1899,  pp.  865-866. 


34  Neutral  Rights  in  the  Anglo-Boer  War.         [186 

foreign  state  at  peace  with  Her  Majesty,  ...  or  whether  a 
British  subject  or  not,  within  Her  Majesty's  dominions,  in- 
duces any  other  person  to  accept  any  commission  or  engage- 
ment in  the  military  or  naval  service  of  any  .  .  .  foreign 
state  ...  he  shall  be  guilty  of  an  offense  "  against  this  act. 
And,  "  If  any  person  induces  any  other  person  to  quit  Her 
Majesty's  dominions  or  to  embark  on  any  ship  within  Her 
Majesty's  dominions  under  a  misrepresentation  or  false  rep- 
resentation of  the  service  in  which  such  person  is  to  be  en- 
gaged, with  the  intent  or  in  order  that  such  person  may 
accept  or  agree  to  accept  any  commission  or  engagement  in 
the  military  or  naval  service  of  any  foreign  state  at  war  with 
a  friendly  state  ...  he  shall  be  guilty  of  an  offense  against 
this  act."  40 

The  last  clause  of  Article  six  of  the  Treaty  of  1871  read : 
"And  the  High  Contracting  Parties  agree  to  observe  these 
rules  as  between  themselves  in  future  and  to  bring  them 
to  the  knowledge  of  other  maritime  Powers  and  to  induce 
them  to  accede  to  them."  41 

These  provisions  were  strictly  enforced  during  the  Span- 
ish-American War,  and  other  countries  in  their  declarations 
defined  the  neutral  attitude  which  they  assumed. 

The  Brazilian  Government  in  its  proclamation  of  April  29, 
1898,  declared:  "The  exportation  of  material  of  war  from 
the  ports  of  Brazil  to  those  of  either  of  the  belligerent 
powers,  under  the  Brazilian  flag,  or  that  of  any  other  nation, 
is  absolutely  prohibited."  *2  It  was  also  pointed  out  that : 
"  Individuals  residing  in  Brazil,  citizens  or  foreigners,  must 
abstain  from  all  participation  and  aid  in  favor  of  either  of 
the  belligerents,  and  may  not  do  any  act  which  might  be  con- 
sidered as  hostile  to  either  one  of  the  two  parties  and,  there- 

40  British  declaration  of  neutrality,  Apl.  26,  1898.     It  was  pointed 
out  that  this  act  extended  to  all  Her  Majesty's  dominions,  including 
the  adjacent  territorial  waters. 

41  Gushing,  Treaty  of  Washington   (1873),  p.  260.     Great  Britain 
was  averse  to  the  acceptance  of  this  article  of  the  treaty,  but  finally 
acceded  to  it  in  the  above  terms  by  signing  the  mutual  agreement. 

"Art.  IV  of  the  Brazilian  proclamation  of  neutrality;  For.  Rel., 
1898,  pp.  847  ff. 


187]  Neutrality  of  the  United  States.  35 

fore,  contrary  to  the  obligations  of  neutrality."  43  Neither 
belligerent  was  to  be  permitted  "  to  promote  enlistment  in 
Brazil,  not  only  of  its  own  citizens,  but  also  of  the  citizens  of 
other  countries,  for  the  purpose  of  incorporating  them  in  its 
forces  of  land  and  sea."  **  Not  even  merchant  vessels  were 
to  be  permitted  to  weigh  anchor  in  Brazilian  ports  until 
permission  from  the  port  authorities  had  been  granted,  and 
any  movements  of  the  belligerents  were  to  be  under  the 
supervision  of  the  customs  authorities  for  the  purpose  of 
verifying  the  proper  character  of  the  things  put  on  board.45 

The  decree  of  Denmark  forbade  Danish  subjects  to  com- 
mit certain  enumerated  offenses,  and  among  them :  "  On  or 
from  Danish  territory  to  assist  any  of  the  belligerent  powers 
in  the  enterprises  of  war,  such  as  supplying  their  ships  with 
articles  that  must  be  considered  contraband  of  war."4"8 
Danish  subjects  were  forbidden  "  to  take  service  in  any 
quality  soever  in  the  army  of  the  belligerent  powers  or 
on  board  their  government  ships,  such  prohibition  to 
include  piloting  their  ships  of  war  or  transports  outside 
the  reach  of  Danish  pilotage,  or,  except  in  case  of  danger  of 
the  sea,  assisting  them  in  sailing  the  ship ; " 4T  "  To  build  or 
remodel,  sell  or  otherwise  convey,  directly  or  indirectly,  for 
or  to  any  of  the  belligerent  powers,  ships  known  or  supposed 
to  be  intended  for  any  purposes  of  war,  or  to  cooperate  in 
any  manner  on  or  from  Danish  territory  in  the  arming  or 
fitting  out  of  such  ships  for  enterprises  of  war  ;"48  "  To 
transport  contraband  of  war  for  any  of  the  belligerent  pow- 
ers, or  hire  or  charter  to  them  ships  known  or  supposed  to 
be  intended  for  such  use."  40 

Japan  forbade  "  the  selling,  purchasing,  chartering,  arm- 
ing, or  equipping  ships  with  the  object  of  supplying  them 

"  For.  Rel.,  1898,  pp.  847  ff.,  Art.  I. 
44  Ibid.,  Art.  II. 
"Ibid.,  Arts.  XVII  and  III. 

"Section   I    (3)    of   Danish  proclamation   of  neutrality,   Apl.   29, 
1898;  For.  Rel.,  1898,  p.  855. 
47 Ibid.,  Sec.  I  (i). 
"  Ibid.,  Sec.  I  (2). 
"Ibid.,  Sec.  I  (4). 


36  Neutral  Rights  in  the  Anglo-Boer  War.         [188 

to  one  or  the  other  of  the  belligerent  powers  for  use  in  war 
or  privateering;  the  assisting  such,  chartering,  arming  or 
equipping."50 

The  Netherlands  proclamation  warned  all  Dutch  subjects 
under  penalty  against  exporting  "  arms,  ammunition,  or 
other  war  materials  to  the  parties  at  war  [to  include]  every- 
thing that  is  adaptable  for  immediate  use  in  war."51 

Although  the  primary  object  of  these  prohibitions  was  the 
stoppage  of  all  dealings  in  articles  of  a  contraband  nature, 
when  fairly  construed  in  the  light  of  international  opinion 
they  would  seem  to  render  illegal  the  wholesale  dealing  in 
horses  and  mules  intended  for  army  purposes  by  one  of  the 
belligerents.  Such  animals  are  undoubtedly  "  adaptable  for 
immediate  use  in  war  "  and  were  in  fact  a  necessity  for  the 
successful  carrying  on  of  the  war.  In  the  light  of  the  ex- 
press restrictions  of  the  Treaty  of  Washington  as  exempli- 
fied in  the  war  between  one  of  the  parties  to  that  treaty  and 
a  third  party  in  1898,  the  obligation  imposed  upon  the 
United  States,  impliedly  at  any  rate,  by  the  sixth  article  of 
the  mutual  agreement  of  1871  might  be  read:  "  The  United 
States  is  bound  not  to  permit  Great  Britain  to  make  use 
of  its  ports  or  waters  as  the  base  of  naval  operations  against 
the  South  African  Republics,  or  for  the  purpose  of  the 
renewal  or  augmentation  of  military  supplies." 

It  would  seem  obvious  that  horses  and  mules  when  in- 
tended for  immediate  use  in  military  operations  are  within 
the  meaning  of  the  term  "  military  supplies."  In  numbers 
of  instances  horses  have  been  considered  contraband  of 
war.  The  treaty  of  1778  between  the  United  States  and 
France  declared :  "  Horses  with  their  furnishings  are  con- 
traband of  war."52  In  the  treaty  of  December  i,  1774, 
between  Holland  and  Great  Britain  it  was  understood  that 
"  Horses  and  other  warlike  instruments  are  contraband  of 

"Art.  4  of  Japanese  proclamation  of  neutrality,  May  2,  1898. 
For.  Rel.,  1898,  p.  879. 

11  Art.  II  (b)  of  Netherlands  proclamation  of  neutrality.  May  3. 
1808.  For.  Rel.,  1898,  p.  888. 

"Article  XXIV;  Wharton,  Digest  of  Int.  Law  (1886),  Vol.  Ill, 
§372. 


189]  Neutrality  of  the  United  States.  37 

war."  And  Hall  declares  that  horses  are  generally  con- 
sidered contraband  and  are  so  mentioned  in  the  treaties 
between  different  States.  He  points  out  that  the  placing 
of  an  army  on  a  war  footing  often  exhausts  the  whole  horse 
reserve  of  a  country  and  subsequent  losses  must  be  supplied 
from  abroad;  the  necessity  for  this  is  in  proportion  to  the 
magnitude  of  the  armies.  Every  imported  horse  is  prob- 
ably bought  on  account  of  the  Government,  and  if  it  is  not 
some  other  horse  is  at  least  set  free  for  belligerent  use. 
"  Under  the  mere  light  of  common  sense,"  he  says,  "  the 
possibility  of  looking  upon  horses  as  contraband  seems 
hardly  open  to  argument."03 

Oppenheim  shows  that  the  importance  of  horses  and 
beasts  of  burden  for  cavalry,  artillery,  and  military  trans- 
port sufficiently  explains  their  being  declared  contraband 
by  belligerents.  He  asserts  that  no  argument  against  their 
being  held  as  conditional  contraband  has  any  validity,  and  it 
is  admitted  that  they  are  frequently  declared  absolute  con- 
traband.04 During  the  Russo-Japanese  War  Russia  at  first 
refused  to  recognize  any  distinction  between  conditional  and 
absolute  contraband,  but  later  altered  her  decision  with  the 
exception  of  "  horses  and  beasts  of  burden,"  which  she 
treated  as  absolute  contraband. 

The  tendency  in  modern  times,  however,  is  to  treat  horses 
as  only  conditional  contraband.  The  only  reason  that  they 
were  not  expressly  declared  contraband  in  the  Anglo-Boer 
contest  was  the  character  of  the  war.  Had  the  Transvaal 
been  able  to  issue  an  authoritative  declaration  and  insure 
respect  for  it  by  a  command  of  the  sea,  horses  and  mules 
would  have  been  considered  technical  contraband  as  in  fact 
they  were  actual  contraband,  being  nothing  if  they  were 
not  "  warlike  instruments." 

The  enforcement  of  the  obligations  incumbent  upon  the 
United  States  under  the  circumstances  undoubtedly  lay  with 
the  Federal  Government  rather  than  with  the  States.  Early 
in  1901  a  proceeding  in  equity  had  been  instituted  in  a 

"International  Law  (1880),  pp.  579-580. 
84  International  Law,  Vol.  II,  p.  426. 


38  Neutral  Rights  in  the  Anglo-Boer  War.         [190 

federal  court  in  New  Orleans  for  the  purpose  of  enjoining 
the  shipment  of  horses  and  mules  from  that  port  to  Cape 
Colony.  The  bill  was  filed  by  private  individuals  who  al- 
leged that  they  had  property  in  the  Transvaal  and  Orange 
Free  State  which  was  being  destroyed  by  the  armies  of 
Great  Britain,  and  that  these  armies  were  able  to  continue 
their  work  of  destruction  only  by  means  of  the  supplies  of 
horses  and  mules  which  were  shipped  from  the  port  of  New 
Orleans.  The  application  for  an  injunction  was  denied 
on  the  ground  that  the  enforcement  of  the  treaty  obligations 
of  the  Government  is  a  function  of  the  President  with  which 
the  courts  have  nothing  to  do. 

The  district  judge  in  delivering  the  opinion  declared  that 
there  was  nothing  in  the  principles  of  international  law  or 
in  the  terms  of  the  Treaty  of  Washington,  to  which  an 
appeal  had  been  made,  to  prevent  the  citizens  of  a  neutral 
state  from  selling  supplies  of  war  to  a  belligerent.  The 
court  went  on  to  discuss  the  right  of  private  citizens  to 
sell  supplies  to  belligerents,  but  did  not  enter  upon  the 
question  whether  or  not  the  United  States  had  permitted 
the  British  Government  to  make  use  of  its  ports  and  waters 
as  a  base  for  the  purpose  of  the  augmentation  of  its  mili- 
tary supplies.  The  entire  discussion  of  questions  of  inter- 
national law  was  considered  by  the  court  as  beyond  its 
cognizance.  The  court  said:  "If  the  complainants  could 
be  heard  to  assert  here  rights  personal  to  themselves  in  the 
treaty  just  mentioned,  and  if  the  mules  and  horses  involved 
in  the  case  are  munitions  of  war,  all  of  which  is  disputed 
by  the  defendants,  it  would  become  necessary  to  determine, 
whether  the  treaty  is  meant  to  prevent  private  citizens  from 
selling  supplies  to  the  belligerents."  The  court  then  pro- 
ceeded :  "  But  the  nature  of  this  cause  is  such  that  none  of 
the  considerations  hereinbefore  set  out  need  be  decided," 
because  "  the  case  is  a  political  one  of  which  a  court  of 
equity  can  take  no  cognizance,  and  which  in  the  very  na- 
ture of  governmental  things  must  belong  to  the  executive 
branch  of  the  Government."55 

K  Pearson  v.  Parson,  108  Fed.  Rep.  461. 


191  ]  Neutrality  of  the  United  States.  39 

It  will  be  seen  that  the  court  did  not  pass  upon  the  ques- 
tion of  an  improper  use  of  the  ports  of  the  United  States. 
Clearly  an  injunction  could  not  be  granted  since  such  a 
measure  would  not  have  had  the  effect  of  remedying  the 
evil.  It  could  not  issue,  for  it  was  not  established  that  there 
were  private  property  rights  to  be  protected.  The  com- 
plainants could  show  no  property  in  the  implications  of  the 
treaty,  nor  could  they  establish  the  fact  alleged,  namely,  that 
horses  and  mules  are  munitions  of  war.  The  last  question 
was  one  for  the  Federal  Government  alone  to  pass  upon 
under  the  circumstances.  Political  obligations  are  not  proper 
matters  for  enforcement  by  the  courts.  But  the  court  did 
declare  emphatically  that  the  enforcement  of  all  neutral  ob- 
ligations with  reference  to  the  ports  and  waters  of  the 
United  States  was  the  function  of  the  executive  branch  of 
the  Government. 

The  question  at  once  arose  whether  it  was  a  function  of 
the  state  or  of  the  federal  executive  to  see  that  the  neu- 
trality laws  were  properly  enforced.  In  submitting  the 
evidence  of  the  operations  of  the  British  agents  within  the 
State  of  Louisiana  Governor  Heard  declared  it  to  be  his 
opinion  that  it  was  the  proper  function  of  the  federal  and 
not  of  the  state  Government  to  enforce  obedience  to  these 
laws;  but,  he  concluded,  "if  such  duty  belongs  to  the  State 
where  the  violations  of  such  laws  occur,  I  would  not  hesi- 
tate to  act  as  the  laws  may  warrant  and  in  keeping  with  the 
dignity  and  responsibilities  of  statehood."86  The  Governor 
asked  that  he  be  informed  immediately  what,  in  the  opinion 
of  the  federal  authorities,  were  the  powers  and  duties  of 
the  state  governments  in  matters  of  this  character. 

Unquestionably  it  lay  with  the  federal  executive  to  see 
to  it  that  the  neutral  obligations  of  all  the  States  were  prop- 
erly observed.  Certain  duties  rest  upon  the  governors  of 
the  different  States,  but  it  is  the  function  of  the  President 
to  carry  into  effect  the  laws  regulating  neutral  obligations 
as  well  as  the  provisions  of  all  treaties  with  foreign  powers 

MH.  R.,  Doc.  568,  57  Cong.,  i  Sess.,  p.  5. 


4O  Neutral  Rights  in  the  Anglo-Boer  War.         [192 

as  a  part  of  the  law  of  the  land.  This  duty  was  pointed 
out  by  Secretary  Randolph  in  a  circular  of  April  16,  1795, 
to  the  governors  of  the  different  States  during  the  war 
between  France  and  England.  He  defined  the  duties  of 
neutrality  and  concluded :  "  As  often  as  a  fleet,  squadron  or 
ship,  of  any  belligerent  nation  shall  clearly  and  unequivo- 
cally use  the  rivers,  or  other  waters  ...  as  a  station  in 
order  to  carry  on  hostile  expeditions  from  thence,  you  will 
cause  to  be  notified  to  the  commander  thereof  that  the 
President  deems  such  conduct  to  be  contrary  to  the  rights 
of  our  neutrality.  ...  A  standing  order  to  this  effect  may 
probably  be  advantageously  placed  in  the  hands  of  some 
confidential  officer  of  the  militia,  and  I  must  entreat  you 
to  instruct  him  to  write  by  mail  to  this  Department,  im- 
mediately upon  the  happening  of  any  case  of  the  kind."57 

It  was  the  duty  of  the  central  Government  to  prevent  as 
far  as  possible  any  abuse  of  the  privileges  which  the  laws 
of  war  allowed  to  the  belligerents.  "  A  Government  is 
justly  held  responsible  for  the  acts  of  its  citizens,"  said 
Justice  McLean  of  the  United  States  Supreme  Court,  speak- 
ing of  the  Canadian  insurrection  of  1838.  And  he  con- 
tinued: "If  this  Government  be  unable  or  unwilling  to  re- 
strain our  citizens  from  acts  of  hostility  against  a  friendly 
power,  such  power  may  hold  this  nation  answerable  and 
declare  war  against  it."58 

Clearly  the  responsibility  for  the  proper  restraint  rested 
upon  the  President  with  reference  to  the  incidents  which 
occurred  around  New  Orleans.  The  fact  that  forbidden 
acts  committed  within  the  jurisdiction  of  a  State  of  the 
Union  escape  punishment  within  that  State  does  not  relieve 
the  central  government  of  responsibility  to  foreign  govern- 
ments for  such  acts.  In  view  of  this  fact  the  citizens  of  the 
separate  States  should  remember  the  consequences  which 
may  result  from  their  acts.  The  warning  of  Justice  Mc- 
Lean, speaking  of  the  incident  already  cited,  is  to  the  point : 

"Moore,  Digest  of  Int.  Law,  Vol.  VII,  p.  934-935. 
M  Citing  Reg.  v.   Recorder  of   Wolverhampton,   18  Law  T.   395- 
398;  see  also  H.  R.;  Doc.  568,  57  Cong.,  i  Sess.,  p.  17. 


193]  Neutrality  of  the  United  States.  41 

"  Every  citizen  is  ...  bound  by  the  regard  he  has  for  his 
country,  by  the  reverence  he  has  for  its  laws,  and  by  the 
calamitous  consequences  of  war,  to  exert  his  influence  in 
suppressing  the  unlawful  enterprises  of  our  citizens  against 
any  foreign  and  friendly  power."  And  he  concludes :  "  His- 
tory affords  no  example  of  a  nation  or  people  that  uni- 
formly took  part  in  the  internal  commotions  of  other  Gov- 
ernments which  did  not  bring  down  ruin  upon  themselves. 
These  pregnant  examples  should  guard  us  against  a  similar 
policy,  which  must  lead  to  a  similar  result." 

In  the  end  nothing  came  of  the  alleged  unneutral  conduct 
of  the  United  States  in  the  use  which  had  been  permitted 
of  the  port  of  New  Orleans  during  the  war.  Had  the 
South  African  Republic  gained  an  international  status 
claims  for  indemnity  would  probably  have  lain  against 
the  United  States  for  a  violation  of  its  neutral  duties. 
Had  the  Transvaal,  recognized  in  war  as  a  belligerent,  be- 
come an  independent  State  as  the  result  of  that  war,  such 
claims  would  doubtless  have  been  honored  and  compensa- 
tion been  made  upon  equitable  grounds.  Had  the  opponent 
of  Great  Britain  in  the  war  been  one  of  the  recognized  pow- 
ers of  the  world  such  a  use  of  territorial  waters  could  not 
have  been  permitted  without  an  effective  protest  having 
been  made  by  the  State  which  was  injured.  The  Republics, 
however,  were  treated  at  the  close  of  the  war  as  conquered 
territory  and  their  obligations  taken  over  by  the  British 
Government.  Their  rights  as  an  independent  State  van- 
ished when  they  failed  to  attain  the  end  for  which  they 
fought. 

The  extreme  generosity  afterward  displayed  by  Great 
Britain  in  the  settlement  of  the  claims  of  all  citizens  of  the 
United  States  who  had  suffered  by  the  war  may  possibly  be 
explained  by  the  benefits  which  the  English  forces  were  able 
to  secure  from  the  construction  which  was  put  upon  Amer- 
ican neutrality. 

A  resolution  of  the  House  of  Representatives  inquiring 
as  to  the  treatment  of  citizens  of  the  United  States  in  the 


42  Neutral  Rights  in  the  Anglo-Boer  War.         [194 

South  African  Republic  brought  out  the  fact  that  the  num- 
ber of  those  who  claimed  compensation  was  not  large  and 
that  the  British  Government  was  willing  to  indemnify 
them.59  The  terms  of  settlement  allowed  to  the  United 
States  were  in  marked  contrast  to  those  granted  to  other 
powers  whose  citizens  or  subjects  had  also  presented  claims 
for  indemnity  through  their  respective  governments.  This 
fact  is  evident  from  the  transactions  before  the  Deporta- 
tion Claims  Commission,  the  appointment  of  which  was  an- 
nounced on  April  8,  1901. 

The  commission  came  together  "  for  the  purpose  of  in- 
vestigating the  claims  to  compensation  which  have  been 
made  or  may  be  made  by  persons  the  subjects  of  various 
friendly  powers  in  consequence  of  their  deportation  to 
Europe  by  the  British  military  authorities  in  South  Africa."60 
It  was  to  be  composed  of  five  members,  among  them  "  R. 
K.  Loveday,  Esq.,  formerly  a  member  of  the  late  South 
African  Republic."  The  commission  was  to  meet  in  Lon- 
don to  hear  such  cases  as  might  be  presented  there  and  then 
proceed  to  South  Africa  with  the  purpose  of  continuing  its 
investigations.  Any  further  evidence  that  was  considered 
necessary  was  to  be  taken  on  the  return  to  London.  It  was 
announced  that  all  claims  should  be  filed  on  or  before  April 
25,  1901,  that  claimants  might  appear  either  in  person  or 
by  counsel,  and  that  the  different  governments  might  repre- 
sent the  combined  claims  of  their  respective  citizens  or 
subjects. 

Mr.  R.  Newton  Crane  appeared  before  the  commission 
on  the  part  of  the  United  States.  In  all,  fifteen  claims  were 
presented.  Five  of  these  were  presented  by  persons  who 
alleged  that  they  were  native-born  citizens  of  the  United 
States,  although  no  evidence  was  furnished  as  to  the  date 
or  place  of  their  birth.  Eight  alleged  that  they  were  natur- 
alized citizens,  while  there  were  two  who  could  produce  no 
evidence  whatever  of  their  status.  Eight  had  been  deported 

"H.  Res.,  178,  56  Cong.,  i  Sess.;  also  H.  R.,  Doc.  618,  56  Cong., 
I  Sess. 
90  For.  Rel.,   1901,  pp.   216-222. 


195]  Neutrality  of  the  United  States.  43 

on  the  suspicion  of  having  been  concerned  in  the  Johannes- 
burg plot  to  murder  Lord  Roberts  and  other  English  officers  ; 
one  had  been  imprisoned  at  Natal  as  a  Boer  spy;  another 
was  captured  on  the  field  of  battle  while  serving,  as  he 
alleged,  with  a  Red  Cross  ambulance  corps  attached  to  the 
Boer  forces ;  three  others  were  compelled  to  leave  the  coun- 
try for  various  reasons,  while  two  more  could  produce  no 
evidence  that  they  had  been  forcibly  deported ;  on  the  con- 
trary it  appeared  that  they  had  left  South  Africa  volun- 
tarily and  at  their  own  expense.  The  whole  amount  claimed 
was  $52,278.29  on  account  of  actual  losses  alleged.  The 
commission  heard  all  claims  by  means  of  an  ex  parte  state- 
ment in  each  case,  with  the  exception  of  two  for  which  no 
statement  had  been  presented.  These  last  two  had  been 
mentioned  as  claimants  by  the  Ambassador  of  the  United 
States  on  October  24,  1900,  in  a  communication  to  Lord 
Landsdowne,  the  English  Secretary  of  State  for  Foreign 
Affairs,  and  were  so  presented  to  the  consideration  of  the 
commission. 

In  dealing  with  the  cases  the  commission  did  not  insist 
upon  any  technical  formality  in  the  way  of  proof.  The  plan 
followed  was  to  allow  the  legal  representative  of  the  English 
•Government  an  opportunity  to  explain  why  each  individual 
had  been  deported.  The  several  claimants  were  then  per- 
mitted to  put  in  evidence  to  clear  themselves  of  these 
charges.  After  the  claims  had  all  been  considered  in  this 
way  the  English  representative  announced  the  wish  of  his 
government  to  "  agree  with  the  representatives  of  the  vari- 
ous governments  upon  a  lump  sum  to  be  received  by  each 
of  the  powers  in  full  satisfaction  of  the  demands  of  their 
respective  claimants,"  it  being  understood  that  the  British 
Government  "  was  not  to  be  concerned  as  to  how  the  sums 
so  paid  were  allocated  among  the  various  claimants."61  This 
proposal  was  accepted  by  the  United  States  and  by  the  other 
governments  represented. 

With  the  announcement  of  the  decision  of  the  commis- 

"For.  Rel.,  1901,  p.  221. 


44  Neutral  Rights  in  the  Anglo-Boer  War.         [196 

sioners  on  October  28,  1901,  Mr.  Crane  pointed  out  that 
it  had  been  very  difficult  to  determine  the  real  merits  of 
most  of  the  claims.  Difficulty  had  been  experienced  not 
only  in  ascertaining  the  real  facts  but  in  applying  the  prin- 
ciples of  international  law  as  well.  Many  of  the  facts 
alleged  by  the  claimants  were  not  substantiated,  and  it  was 
only  the  considerate  view  taken  by  the  British  Government 
which  made  possible  a  settlement  so  favorable  to  the  United 
States. 

Holland  put  in  a  claim  for  £706,355  in  behalf  of  1139 
persons  who  alleged  that  they  were  Dutch  subjects,  and 
received  5.3  per  cent,  of  that  amount,  or  £37,500,  which 
was  the  highest  actual  award  made,  although  the  lowest 
percentage  of  the  sum  claimed.  Germany  received  £30,000, 
or  12.22  per  cent,  of  the  amount  claimed  for  199  persons ; 
Austria-Hungary  £15,000,  or  34.24  per  cent,  for  112  per- 
sons; Italy  £12,000,  or  28.52  per  cent,  for  113  persons;  the 
United  States  £6,000,  or  22.22  per  cent,  for  15  persons. 
But  Mr.  Crane  called  attention  to  the  evident  error  of  basing 
a  calculation  upon  the  relation  the  award  in  each  case  bears 
to  the  amount  claimed.  The  amount  claimed  in  most  cases 
is  not  what  the  claimant  thinks  he  is  justly  entitled  to  for 
the  losses  he  has  sustained,  but  is  the  amount  which  his 
"caprice  or  cupidity  fixes  as  that  which  may  possibly  be 
allowed  him."62  Among  the  American  claims  a  number 
included  demands  for  "moral"  damages,  and  these  claims 
were  larger  than  similar  demands  put  in  by  citizens  of  other 
countries.  Even  among  the  American  claimants  themselves 
there  was  a  wide  divergence  in  appraising  their  losses, 
actual  as  well  as  moral.  Of  three  in  the  same  occupation, 
the  same  employment,  the  same  domestic  surroundings,  de- 
ported together,  at  about  the  same  time,  and  under  almost 
identical  circumstances,  one  demanded  $5,220,  the  second 
appraised  his  losses  at  $11,112.50,  and  the  third  estimated 
his  losses  at  $50,000. 

With  reference  to  the  American  claimants  the  conditions 

"For.  Rel.,  1901,  p.  221. 


197]  Neutrality  of  the  United  States.  45 

under  which  the  persons  were  deported  were  practically  the 
same,  and  there  was  little  if  any  distinction  as  to  social 
rank  or  grade  of  employment.  Mr.  Crane,  therefore,  seems 
justified  in  his  conclusion  that  the  idea  conveyed  by  the  per- 
centage relation  of  the  amount  demanded  to  the  amount 
actually  awarded  is  misleading,  and  should  not  serve  as  a 
precedent  without  comment  for  similar  claims  in  the  future. 
A  much  fairer  method  for  ascertaining  what  the  award 
really  amounts  to  is  shown  to  be  that  of  computing  what 
average  sum  each  claimant  received,  since  the  claimants 
were  practically  of  one  walk  of  life  and  employment  and 
were  deported  under  like  conditions.  Such  a  computation 
shows  that  the  United  States  fared  much  better  than  any 
one  of  the  other  governments,  the  average  sum  received  by 
each  claimant  being  £428  us.  5d.,  as  compared  with  £150  155. 
for  Germany;  £142  175.  id.  for  Russia;  £133  i8s.  6d.  for 
Austria-Hungary;  £133  6s.  8d.  for  Belgium;  £125  for  Nor- 
way and  Sweden ;  and  £106  35.  lod.  for  Italy. 

The  £6,000  offered  by  the  British  Government  as  full 
compensation  for  all  claims  of  citizens  of  the  United  States 
on  account  of  wrongful  arrest,  imprisonment  and  deporta- 
tion from  South  Africa  up  to  October  26,  1901,  was  ac- 
cepted by  Secretary  Hay.  Only  £4,000  had  been  originally 
offered,  but  the  amount  had  afterward  been  increased  to 
£6,000.  Throughout  the  negotiations  the  attitude  of  the 
English  Government  was  generous  toward  the  United 
States.  The  claimants  included  good,  bad  and  indifferent, 
some  of  whom  were  not  entitled  to  compensation  at  all, 
since  they  were  not  citizens  of  the  United  States,  while 
others  had  actually  taken  up  arms  against  Great  Britain. 
The  average  amount  awarded  to  each  alleged  citizen  of  the 
United  States  was  approximately  $2000  as  against  $216  for 
each  claimant  of  all  other  Governments  taken  together. 

In  a  number  of  cases  the  claimants  had  contracted  with 
local  attorneys  upon  the  basis  of  a  contingent  fee  of  50 
per  cent,  of  whatever  might  be  awarded.  In  one  case  the 
fee  of  the  attorney  presenting  the  claim  amounted  to  $3750, 


46  Neutral  Rights  in  the  Anglo-Boer  War,         [198 

although  his  services  consisted  in  merely  filing  memorials 
which  were  not  supported  by  a  single  word  of  proof  of 
the  assertions  they  contained,  even  after  ample  time  had 
been  given  for  the  introduction  of  such  proof.  Mr.  Crane, 
therefore,  urged  that  in  future  similar  claims  should  be 
presented  directly  by  the  citizens  themselves  without  the 
intermediation  of  attorneys.  In  the  present  cases  he  said 
that  his  requests  to  the  attorneys  for  the  different  claimants 
to  furnish  evidence  to  meet  the  accusations  of  the  British 
Government  against  their  clients  had  met  with  no  response 
whatever.  He  felt  justified  in  believing  that  these  attor- 
neys had  either  given  up  the  presentation  of  the  claims  of 
their  clients  or  that  the  latter  were  dead.  It  was  accord- 
ingly suggested  that  in  either  case  the  United  States  would 
be  justified  in  refusing  to  pay  over  to  the  attorneys  such 
sums  as  might  be  allotted  to  their  clients  until  the  latter  had 
been  directly  communicated  with.  In  this  way  they  would 
have  the  opportunity  to  confirm  or  withdraw  any  powers  of 
attorney  which  they  might  have  executed  for  the  collection 
of  their  respective  claims. 


CHAPTER  II. 
THE  NEUTRALITY  OF  EUROPEAN  POWERS. 

The  attitude  of  the  European  powers  was  generally  ob- 
servant of  the  requirements  of  neutrality  in  so  far  as  gov- 
ernmental action  could  be  proved.  The  frequent  charges 
which  Great  Britain  made  that  the  Transvaal  was  recruit- 
ing forces  in  Europe  were  not  proved  against  the  States 
from  which  the  recruits  came.  The  numbers  in  the  parties 
which  perhaps  actually  joined  the  Boer  forces  were  not 
large,  and  no  formidable  fitting  out  of  an  expedition  or 
wholesale  assistance  was  proved  against  any  European  gov- 
ernment. 

Germany,  the  power  most  nearly  in  touch  with  the  Trans- 
vaal in  South  Africa  with  the  exception  of  Portugal,  early 
declared  the  governmental  attitude  toward  the  struggle. 
The  German  consul-general  at  Cape  Town  on  October  19, 
1899,  issued  a  proclamation  enjoining  all  German  subjects 
to  hold  aloof  from  participation  in  the  hostilities  which 
Great  Britain  at  that  time  had  not  recognized  as  belligerent 
in  character.  If  insurgency  be  recognized  as  a  distinct 
status  falling  short  of  belligerency,  this  was  perhaps  such  a 
recognition,  but  it  was  in  no  sense  an  unfriendly  act  to- 
ward Great  Britain.  It  was  merely  a  warning  to  German 
subjects  as  to  the  manner  in  which  they  should  conduct 
themselves  under  the  circumstances.  It  did  not  recognize 
the  Boers  as  belligerents  in  the  international  sense,  but  it 
warned  German  subjects  that  a  condition  of  affairs  existed 
which  called  for  vigilance  on  their  part  in  their  conduct 
toward  the  contestants.  Later,  when  the  British  Govern- 
ment announced  that  the  war  would  be  recognized  retro- 
actively as  entitled  to  full  belligerent  status,  Germany  de- 
clared the  governmental  attitude  to  be  that  of  strict  neutral- 
ity in  the  contest.  An  attempt  of  the  Boers  to  recruit  in 

47 


48  Neutral  Rights  in  the  Anglo-Boer  War.         [200 

Damaraland  was  promptly  stopped  by  the  German  officers  in 
control,  who  were  ordered  to  allow  neither  men  nor  horses 
to  cross  the.  border  for  the  purposes  of  the  war.  All  Ger- 
man steamship  lines  which  held  subventions  from  the  Gov- 
ernment were  warned  that  if  they  were  found  carrying 
contraband  they  would  thereby  forfeit  their  privileges. 
Stringent  orders  were  also  given  by  the  different  German 
ship  companies  to  their  agents  in  no  case  to  ship  contra- 
band for  the  belligerents.  The  attitude  assumed  by  the 
German  Government  was  not  entirely  in  accord  with  the 
popular  feeling  in  Germany.  On  October  5  a  mass-meet- 
ing at  Gottingen,  before  proceeding  to  the  business  for 
which  the  conference  was  called,  proposed  a  resolution  of 
sympathy  for  the  Boers :  "  Not  because  the  Boers  are  en- 
tirely in  the  right,  but  because  we  Germans  must  take  sides 
against  the  English."1  But  despite  popular  sentiment,  the 
position  which  had  been  taken  by  the  Government  seems  to 
have  been  consistently  maintained. 

In  June,  prior  to  the  outbreak  of  war,  President  Kruger 
had  been  advised  by  the  Dutch  Minister  for  Foreign  Affairs 
that  the  Transvaal  should  maintain  a  moderate  attitude  in 
the  discussion  of  the  questions  at  issue  with  the  British 
Government.  The  German  Government,  too,  had  advised 
the  Republics  to  invite  mediation,  but  at  that  time  President 
Kruger  declared  that  the  moment  had  not  yet  come  for 
applying  for  the  mediation  of  America.  The  United  States, 
it  was  considered  by  both  Holland  and  Germany,  could  most 
successfully  have  undertaken  the  role  of  mediator  from  the 
fact  that  England  would  have  been  more  likely  to  entertain 
proposals  of  the  kind  coming  from  Washington  than  from 
a  European  capital. 

In  December,  1900,  Count  Von  Biilow,  the  German  Im- 
perial Chancellor,  speaking  of  the  neutral  attitude  of  Ger- 
many, declared  that  when  President  Kruger  later  attempted 
to  secure  arbitration  it  was  not  until  feeling  had  become 
so  heated  that  he  was  compelled  to  announce  to  the  Dutch 

1  London  Times,  Weekly  Ed.,  Oct.  5,  1899,  p.  626,  col.  2. 


2oi]  Neutrality  of  European  Powers.  49 

Government  that  it  was  not  possible  to  arrange  for  arbi- 
tration. The  German  Government,  it  was  declared,  re- 
garded any  appeal  to  a  Great  Power  at  that  time  as  hope- 
less and  as  very  dangerous  to  the  Transvaal.  The  German 
and  the  Dutch  Governments  each  believed  that  President 
Kruger  should  not  have  rejected  the  English  proposal  then 
before  him  for  a  joint  commission  of  inquiry.2  The  Ger- 
man Government  had  nothing  for  which  to  reproach  itself 
in  regard  to  the  outbreak  of  war  or  with  reference  to  the 
fate  of  the  Republics.  "  Of  course  there  are  certain  lengths 
to  which  we  could  not  possibly  go.  We  could  not,  in  order 
to  prevent  the  door  from  being  slammed,  let  our  own  fingers 
be  crushed  between  the  door  and  the  hinges;  that  would 
not  have  helped  the  Boers  and  would  only  have  harmed  our- 
selves,— and  when  the  war  had  broken  out  it  was  impossible 
for  us,  in  view  of  the  general  situation  of  the  world  and 
from  the  standpoint  of  German  interests  as  a  whole  to 
adopt  any  attitude  except  that  of  strict  neutrality."3  Con- 
tinuing, Count  von  Biilow  pointed  out  the  fact  that  the 
policy  of  a  great  country  should  not  at  a  critical  moment  be 
governed  by  the  dictates  of  feeling,  but  should  be  guided 
solely  in  accordance  with  the  interests  of  the  country,  calmly 
and  deliberately  calculated. 

The  possibility  of  mediation  with  Germany  in  the  role  of 
mediator  was  shown  to  have  been  made  conditional  upon 
the  acceptance  of  such  a  step  by  both  the  parties  to  the  con- 

2  The  German  Chancellor  seems  slightly  in  error  in  assuming  that 
the  Transvaal  rejected  the  English  proposal  for  a  joint  inquiry.  It 
will  be  remembered  that  immediately  following  the  Bloemfontein 
Conference  President  Kruger  had  drafted  a  law  considerably 
modifying  the  Transvaal  demands  in  the  conference,  and  later  sub- 
mitted the  proposals  of  August  19,  which  he  alleged  had  been  "  in- 
duced "  by  their  implied  acceptance  on  the  part  of  the  British  agent. 
When  these  proposals  lapsed  from  the  fact  of  their  non-acceptance 
by  the  British  Government,  he  declared  that  he  was  ready  to  return 
to  the  discussion  of  the  proposed  joint  commission  of  inquiry  and 
was  met  by  the  English  assertion  that  the  condition  of  affairs  no 
longer  warranted  a  discussion  of  the  original  proposal  for  such  a 
commission,  and  that  Great  Britain  would  have  to  formulate  new 
demands  to  meet  the  altered  conditions.  The  outbreak  of  war  had 
forestalled  these  demands. 

'Speech  in  Reichstag,  London  Times,  Dec.  n,  1900,  p.  5,  col.  I. 


5O  Neutral  Rights  in  the  Anglo-Boer  War.         [202 

test,  as  otherwise  it  would  not  have  been  mediation  but  inter- 
vention, with  the  ultimate  possibility  of  the  exercise  of  force 
for  the  purpose  of  stopping  the  hostilities.  Intervention  of 
that  kind,  involving  the  idea  of  coercion,  was  never  consid- 
ered by  the  German  Government  because  of  the  general 
situation  of  the  world  and  of  special  German  interests.  The 
idea  of  anything  other  than  entirely  peaceful  and  friendly 
intervention  was  not  entertained  by  any  power  in  consider- 
ing the  situation  in  South  Africa.  The  German  Chancellor 
declared  that  "even  those  Powers  which  academically^ venti- 
lated the  idea  of  peaceful  mediation  invariably  and  expressly 
laid  stress  upon  the  fact  that  they  had  no  thought  or  inten- 
tion of  forcing  England  to  accept  peace  against  her  will." 
He  asserted  that  the  possibility  of  mediation  was  thus  ex- 
cluded since  the  preliminary  condition  of  such  a  course  was 
the  consent  of  both  parties  to  the  conflict. 

Count  Von  Bulow  also  called  attention  to  the  fact  that  the 
gentlest  form  of  diplomatic  inquiry  made  by  the  United 
States  had  been  rejected  by  the  English  Government  "offi- 
cially and  categorically  in  the  most  distinct  manner  possible." 
And  speaking  officially,  he  continued,  "We  therefore  did 
what  we  could  as  a  neutral  Power  and  without  imperilling 
direct  German  interests  in  order  to  prevent  the  outbreak  of 
war.  In  particular  we  acted  in  the  most  straightforward 
manner  toward  the  governments  of  the  South  African  Re- 
publics inasmuch  as  from  the  first  and  in  good  time  we  left 
them  in  no  doubt  regarding  the  situation  in  Europe  and  also 
regarding  our  own  neutrality  in  the  event  of  war  in  South 
Africa.  In  both  these  regards  we  made  matters  clear  to  the 
two  South  African  Republics  and  did  so  in  good  time."4 
The  Chancellor  seems  to  have  fairly  defined  the  position 
maintained  by  the  German  Government  throughout  the  war, 
although  popular  feeling  often  clamored  for  official  action 
in  behalf  of  the  Boers. 

A  similar  course  was  pursued  by  the  French  Government 
despite  the  fact  that  in  France  popular  sympathy  was  more 

4  Speech  in  Reichstag,  Dec.  10,  1900. 


203]  Neutrality  of  European  Powers.  51 

strongly  in  favor  of  the  Transvaal  than  was  the  case  in 
Germany.  No  official  action,  however,  was  taken  which 
could  involve  France  in  complications  in  view  of  the  de- 
clared neutral  attitude  assumed  at  the  beginning  of  the 
war.  The  administration  at  Paris  ordered  the  prefects 
throughout  the  country  "to  have  removed  from  the  official 
minutes  the  resolutions  of  sympathy  for  the  Boers  which 
had  been  adopted  by  the  provincial  councils.  But  opposed 
to  the  correct  attitude  of  the  Government,  popular  feeling 
was  manifested  in  different  ways.  A  committee  of  ladies 
in  Paris  made  a  direct  appeal  to  the  French  people.  They 
declared :  "  We  are  not  biased  enemies  of  the  British  Nation 
.  .  .  but  we  have  a  horror  of  grasping  financiers,  the  men  of 
prey  who  have  concocted  in  cold  blood  this  rascally  war. 
They  have  committed  with  premeditation  a  crime  of  lese- 
hinnanite,  the  greatest  of  crimes.  May  the  blood  which  red- 
dens the  battle-fields  of  South  Africa  forever  be  upon  their 
heads.  .  .  .  Yes,  we  are  heart  and  soul  with  the  Boers.  .  .  . 
We  admire  them  because  old  men  and  young  women,  even, 
are  all  fighting  like  heroes.  .  .  .  Alas!  to  be  sure,  there  is 
no  more  a  France,  nor  yet  an  America.  .  .  .  Ah !  Ideal  abode 
of  the  human  conscience,  founded  by  Socrates,  sanctified  by 
Christ,  illuminated  in  flashes  of  lightning  by  the  French 
Revolution,  what  has  become  of  thee?  There  is  no  longer 
a  common  temple  for  civilized  states.  Our  house  is  di- 
vided against  itself  and  is  falling  asunder.  Peace  reigns 
everywhere  save  on  the  banks  of  the  Vaal,  but  it  is  an  armed 
peace,  an  odious  peace,  a  poisoned  peace  which  is  eating  us 
up  and  from  which  we  are  all  dying." 5  Such  hysterical 
outbursts  in  France  were  not  taken  seriously  by  the  Gov- 
ernment, and  the  feeling  which  inspired  them  was  possibly 
more  largely  due  to  historic  hatred  of  England  than  to  the 
inherent  justice  of  the  Boer  cause. 

The  Ninth  Peace  Conference,  which  was  in  session  at 
Paris  in  the  fall  of  1900,  without  expressly  assuming  the 
right  of  interfering  in  the  affairs  of  a  friendly  nation  fur- 

B  London  Times,  April  2,  1900,  p.  5,  col.  5. 


52  Neutral  Rights  in  the  Anglo-Boer  War.         [204 

ther  than  to  "  emphatically  affirm  the  unchangeable  principles 
of  international  justice,"  adopted  a  resolution  declaring  that 
the  responsibility  for  the  war  devastating  South  Africa  fell 
upon  that  one  of  the  two  parties  who  repeatedly  refused 
arbitration,  that  is,  it  was  explained,  upon  the  British  Gov- 
ernment ;  that  the  British  Government,  in  ignoring  the  prin- 
ciples of  right  and  justice,  in  refusing  arbitration  and  in 
using  menaces  only  too  likely  to  bring  about  war  in  a  dis- 
pute which  might  have  been  settled  by  judicial  methods, 
had  committed  an  outrage  against  the  rights  of  nations  cal- 
culated to  retard  the  pacific  evolution  of  humanity;  that  the 
Governments  represented  at  the  Hague  had  taken  no  public 
measures  to  ensure  respect  for  the  resolutions  which  should 
have  been  regarded  by  them  as  an  engagement  of  honor; 
that  an  appeal  to  public  opinion  on  the  subject  of  the  Trans- 
vaal was  advocated  and  sympathy  and  admiration  were  ex- 
pressed for  the  English  members  of  the  conference.6 

The  usual  French  attitude  toward  Great  Britain  was  ex- 
pressed in  these  resolutions,  but  the  conference  was  not 
prepared  to  go  so  far  as  to  adopt  a  resolution  proposed  by 
a  member  from  Belgium  expressing  the  hope  that  the  mis- 
take of  depriving  the  Republics  of  their  independence  would 
not  be  committed,  and  favoring  an  energetic  appeal  to  the 
powers  for  intervention.  The  resolution  was  rejected  by  a 
large  majority  on  the  ground  that  it  would  be  impolitic  and 
naturally  irritating  to  England  and  without  much  proba- 
bility of  favorable  results  being  attained. 

When  the  delegation  of  the  Boers  which  was  sent  to  appeal 
to  the  European  Powers  for  action  in  behalf  of  the  Repub- 
lics reached  Paris  in  July,  1900,  the  attitude  of  the  French 
Government  was  not  altered,  nor  were  the  envoys  encouraged 
to  hope  for  intervention.  They  were  received  by  the  Presi- 
dent but  only  in  an  informal  and  unofficial  manner  when 
presented  by  Dr.  Leyds.  When  they  reached  Berlin  in 
August  neither  the  Emperor  nor  the  Chancellor  was  in  the 
city  and  consequently  the  visit  had  no  official  significance, 

8  London  Times,  Oct  3,  1900,  p.  3,  col.  3. 


205]  Neutrality  of  European  Powers.  53 

but  in  St.  Petersburg  a  more  favorable  reception  awaited 
them.  The  Official  Messenger  announced  on  August  26 
that  Dr.  Leyds  had  been  received  in  audience  by  the  Czar. 
This  statement,  coming  as  it  did  from  the  official  organ  of 
the  Foreign  Office,  seemed  to  signify  a  full  recognition  of 
the  accredited  character  of  the  delegation,  and  Dr.  Leyds 
was  referred  to  officially  as  "  Minister  of  the  South  African 
Republic."  7  With  the  exception  of  the  British  Minister,  he 
was  received  by  all  of  the  diplomatic  corps,  a  courtesy  which 
the  members  could  not  well  have  denied  him,  but  as  to  prac- 
tical results  the  mission  to  Russia  amounted  to  nothing. 

On  their  return  to  Germany  the  envoys  received  no  official 
notice.  The  secret  instructions  which  they  had  opened  only 
upon  reaching  Milan  were  supposed  to  have  contained  cer- 
tain communications  which  had  been  exchanged  between  the 
Governments  of  the  Transvaal  and  Great  Britain  but  which 
it  was  alleged  had  not  been  published  in  the  Blue  Books. 
This  assertion  of  sinister  motives  on  the  part  of  Great  Brit- 
ain exerted  little  influence  upon  foreign  governments  in 
Europe.  The  delegation  realized  the  impossibility  of  se- 
curing the  interference  of  a  concert  of  Powers  or  of  any  one 
State  against  the  wishes  of  England.  The  mission  of  the 
Boers  had  been  doomed  to  failure  from  the  beginning. 

The  action  of  the  Queen  of  Holland  in  receiving  the  dele- 
gation was  generally  understood  as  not  of  an  unneutral 
character  but  as  inspired  by  sympathy  for  a  kindred  people 
and  a  willingness  to  mediate  though  not  to  intervene.  It 
was  recognized  that  no  nation  whose  interests  were  not 
directly  concerned  could  afford  to  persist  in  offers  of  medi- 
ation in  view  of  the  fact  that  Great  Britain  had  already  inti- 
mated to  the  United  States  that  such  an  offer  could  not  be 
accepted.  Although  Holland  refused  to  intervene,  the  atti- 
tude assumed  by  the  Dutch  Government  in  other  respects 
caused  severe  criticism  in  England.  The  chief  circumstance 
which  confirmed  the  opinion  that  Holland  as  a  neutral  State 
had  not  displayed  a  proper  attitude  at  Lorenzo  Marques  was 

T  London  Times,  July  26,  1900. 


54  Neutral  Rights  in  the  Anglo-Boer  War.         [206 

the  fact  that  after  the  visit  of  the  envoys  of  the  Transvaal 
the  Hague  Government  had  sent  a  man-of-war  to  the  island 
of  St.  Helena,  which  was  being  used  as  a  prison  for  the  Boers 
who  were  transported  from  South  Africa.  This  proceeding 
was  viewed  by  England  as  officious  from  the  fact  that  for- 
eign men-of-war  were  not  usually  received  at  that  port. 
Popular  feeling  saw  in  the  despatch  of  the  man-of-war  an 
unfriendly  act  which  might  easily  have  led  to  difficulty. 
But  the  incident,  aside  from  the  benevolent  character  which 
Holland  had  given  to  the  enforcement  of  her  neutrality 
laws  throughout  the  war,  had  no  significance  in  international 
law.  It  was  generally  considered,  however,  that  the  feeling 
which  England  manifested  with  regard  to  the  visit  of  the 
cruiser  gave  some  ground  for  the  suspicion  that  the  British 
Government  might  have  had  something  to  conceal  at  St. 
Helena. 

The  general  attitude  of  Germany,  France  and  Russia 
toward  the  Boer  mission  was  guided  by  a  policy  of  strict 
adherence  to  the  neutral  obligations  assumed  at  the  beginning 
of  the  war.  These  Powers  in  their  official  statements  all 
followed  such  a  course,  realizing  that  it  was  demanded  by  a 
sound  foreign  policy.  They  considered  the  idea  of  inter- 
vention out  of  the  question,  although  friendly  interest  for 
the  Boers  and  for  the  peaceful  purpose  of  their  mission  was 
evident. 

From  the  beginning  of  the  war  the  active  duties  of  neu- 
trality had  fallen  upon  Portugal,  since  neither  the  Trans- 
vaal nor  the  Orange  Free  State  possessed  a  seaport.  Fifty 
miles  of  railway  separated  the  Portuguese  harbor  of  Lorenzo 
Marques  in  Delagoa  Bay  from  the  Transvaal  border,  and 
from  this  point  the  road  continued  to  Pretoria.  Lorenzo 
Marques  being  neutral  could  not  be  blockaded,  but,  being 
neutral,  it  was  the  duty  of  the  Portuguese  Government  to 
observe  the  laws  of  neutrality.  Great  Britain  alleged 
that  a  constant  stream  of  supplies  and  recruits  passed  over 
the  Portuguese  border  to  aid  the  Boer  armies.  The  difficulty 
on  the  part  of  the  English  Government,  however,  was  to 


207]  Neutrality  of  European  Powers.  55 

prove  that  the  goods  were  in  fact  on  their  way  to  a  belliger- 
ent destination  or  that  small  parties  of  men  were  in  reality 
organized  bands  of  recruits  for  the  fighting  forces  of  the 
enemy.  It  was  asserted  that  the  manner  in  which  Portugal 
performed  her  neutral  obligations,  demanding  an  absolutely 
impartial  treatment  of  both  belligerents,  made  Delagoa  Bay 
and  the  port  of  Lorenzo  Marques  more  valuable  to  the  Re- 
publics than  would  have  been  the  case  had  they  actually  been 
in  their  possession. 

The  efficiency  of  Portugal's  performance  of  neutral  duties 
varied  during  the  war.  As  early  as  August  25,  before  nego- 
tiations had  been  broken  off  between  the  Transvaal  and 
Great  Britain,  the  Portuguese  Governor  at  Lorenzo  Marques 
refused  to  permit  two  cargoes  of  Mauser  ammunition  to  land 
because  it  was  consigned  to  the  Transvaal.  The  ammuni- 
tion was  transferred  to  a  Portuguese  troop  ship,  and  the 
Governor  assigned  as  sufficient  reason  for  his  action  the 
fact  that  Great  Britain  had  urged  the  measure  upon  the 
Portuguese  authorities.  He  stated  that  orders  had  been  re- 
ceived from  Lisbon  that  guns  and  ammunition  for  the  Trans- 
vaal should  not  be  landed  until  further  notice  from  the 
Portuguese  Government.  The  Transvaal  strongly  protested 
against  this  act  as  a  breach  of  a  treaty  between  the  two  Gov- 
ernments in  which  by  Article  VI  the  Portuguese  Govern- 
ment was  prohibited  from  stopping  ammunition  intended  for 
the  Transvaal,  but  upon  representations  by  England  might 
stop  ammunition  on  its  way  to  any  English  colony.  The 
opinion  in  the  Transvaal  was  that  the  act  on  the  part  of 
Portugal  and  Great  Britain  constituted  an  act  of  war,  in  that 
peaceable  negotiations  were  still  pending,  a  view  which 
seems  fully  warranted  since  Portugal  possessed  no  right  to 
treat  any  traffic  as  contraband  before  war  had  begun.  A 
petition  was  circulated  at  Pretoria  advising  the  Government 
to  discontinue  negotiations  pending  with  England  looking  to 
a  peaceful  settlement  of  the  issues  between  the  two  Govern- 
ments. Although  this  step  was  not  taken,  the  protestations 
made  by  the  Transvaal  seem  to  have  had  their  effect  upon 


56  Neutral  Rights  in  the  Anglo-Boer  War.         [208 

the  Portuguese  authorities,  for  upon  the  outbreak  of  war  the 
banks  at  Lorenzo  Marques  continued  to  accept  Transvaal 
coin,  and  after  the  first  flurry  caused  by  the  transition  from 
peace  to  war  the  Transvaal  notes  were  accepted  at  their 
face  value. 

By  the  middle  of  December  the  English  Government  had 
begun  to  view  the  condition  of  affairs  at  the  port  of  Delagoa 
Bay  and  the  town  of  Lorenzo  Marques  with  grave  dissatis- 
faction. It  was  publicly  alleged  that  Lorenzo  Marques 
was  nothing  more  nor  less  than  a  base  from  which  the  Trans- 
vaal obtained  everything  that  it  needed.  Further  than  this, 
it  was  declared  that  the  town  was  the  headquarters  of  Trans- 
vaal agents  of  every  description  who  were  in  daily  communi- 
cation with  their  Government  and  with  Europe.  The  Eng- 
lish authorities  felt  themselves  helpless  to  prevent  the  im- 
portation of  machinery  and  other  material  required  for  the 
mines  which  were  worked  by  the  Transvaal  Government. 
Even  explosives  for  the  government  factory  and  actual 
ammunition  reached  the  Transvaal  by  way  of  Lorenzo 
Marques  because  of  the  inability  of  the  English  cruisers 
to  make  a  thorough  search  of  foreign  vessels  bound  for  a 
neutral  port  and  professedly  carrying  foodstuffs.  British 
shippers  alleged  that  while  they  were  prohibited  from  trading 
with  the  enemy  foreign  shippers  were  reaping  the  profits  and 
materially  aiding  in  the  prolongation  of  the  war. 

It  later  developed  that  the  apparent  neglect  on  the  part  of 
Portugal  to  observe  a  strict  watch  over  the  character  of 
goods  allowed  to  pass  through  to  the  Transvaal  was  not 
entirely  due  to  the  governmental  attitude  at  Lisbon.  It 
seems  that  the  Dutch  consul  at  Lorenzo  Marques  had  taken 
over  in  the  way  of  friendly  offices  the  interests  of  the  Orange 
Free  State  as  well  as  those  of  the  Transvaal.  It  was  also 
ascertained  that  the  consul  of  Holland  was  the  manager 
of  the  local  agencies  for  a  number  of  steamboat  companies, 
among  them  the  Castle  Packet  Company,  the  African  Boat- 
ing Company,  the  British  India,  and  the  British  and  Colonial 
Steam  Navigation  Company.  Only  one  English  company 


209]  Neutrality  of  European  Powers.  57 

had  put  patriotism  before  profit  and  transferred  its  agency 
from  the  Dutch  consul  upon  the  outbreak  of  war. 

The  British  Government  was  also  handicapped  by  the  fact 
that  local  British  banks  accepted  the  drafts  issued  by  the 
Transvaal  and  Orange  Free  State.  The  Transvaal  dies  of 
1899  and  1900  had  been  seized  by  the  English,  but  despite 
this  fact  the  coins  issued  with  the  date  of  the  dies  of  1897 
and  1898  were  freely  used  by  the  local  English  banks.8  This 
unpatriotic  action  on  the  part  of  British  subjects  controlling 
the  banks  made  easy  the  work  of  the  Boer  forwarding 
agents;  it  was  alleged,  and  the  fact  seemed  pretty  well  au- 
thenticated, that  the  Dutch  consul,  Mr.  Pott,  facilitated  this 
work  by  allowing  contraband  to  be  landed  at  night.  Such 
articles  thrown  into  half-laden  trucks  upon  the  railway  often 
reached  the  Transvaal  without  detection.  Cases  labelled 
"  candles  "  were  hoisted  in  without  pretense  of  examination. 
It  was  alleged  also  that  guns  and  fifty  tons  of  shells  had 
been  landed  in  December  under  the  very  noses  of  two 
British  warships,  and  that  wholesale  smuggling  was  going 
on  with  the  connivance  of  a  nominally  neutral  consular 
agent. 

Under  the  protests  of  the  British  Government,  however, 
orders  arrived  from  Lisbon  which  revived  an  old  law  re- 
quiring all  persons  leaving  Portuguese  territory  to  obtain 
passports  signed  by  the  Governor-general.  The  applicants 
were  required  to  give  guarantees  through  their  respective 
consuls  that  they  were  not  going  to  the  Transvaal  for  the 
purpose  of  enlisting.  The  Portuguese  authorities  took  the 
matter  in  hand,  and  persons  attempting  to  go  without  pass- 
ports were  promptly  sent  back.  The  customs  authorities 
began  a  stricter  watch  over  the  Transvaal  imports,  and  on 
January  19  seized  as  contraband  three  cases  of  signalling 
apparatus  consigned  to  Pretoria.9 

It  was  claimed,  however,  that  of  the  imports  of  £30,500 
to  Delagoa  Bay  during  December  there  had  been  forwarded 
to  the  Transvaal  goods  valued  at  not  less  than  £21,000. 


*  London  Times,  Weekly  Ed.,  Jan.  12,  1899,  P-  20.  col.  4. 
'  London  Times,  Weekly  Ed.,  Jan.  19,  1900,  p.  36,  col.  3. 


58  Neutral  Rights  in  the  Anglo-Boer  War.         [210 

And  it  seemed  evident  to  England,  despite  the  more  strin- 
gent port  regulations,  that  the  number  of  foreigners  daily 
entering  the  Transvaal  by  way  of  Lorenzo  Marques  was  far 
in  excess  of  the  number  which  would  be  desirous  of  going 
to  Pretoria  for  peaceful  purposes.  Mr.  Pott,  it  was  still  al- 
leged, was  acting  as  the  head  of  a  Boer  organization  for 
facilitating  the  entrance  of  men  desiring  to  enlist  with  the 
Boer  forces.  He  was  consequently  cautioned  in  January 
by  the  Portuguese  Governor  that  if  he  recruited  for  the 
Boer  forces  or  was  detected  doing  anything  inconsistent 
with  the  neutral  obligations  of  Portugal,  a  request  would  be 
made  to  the  Netherlands  Government  to  have  him  trans- 
ferred to  another  field.  The  Portuguese  authorities  at  the 
same  time  began  a  closer  supervision  of  the  persons  who 
were  allowed  to  enter  the  Transvaal  from  Portuguese  terri- 
tory. The  previous  restriction  that  passports  be  signed  by 
the  respective  consuls  of  persons  leaving  for  Transvaal  ter- 
ritory was  considered  insufficient,  and  the  consuls  of  the  dif- 
ferent countries  represented  at  Lorenzo  Marques  were  in- 
formed that  they  must  personally  guarantee  that  the 
applicants  whom  they  endorsed  were  not  military  men,  and 
were  not  proceeding  to  assist  the  Boer  forces  in  the  field. 

These  restrictions,  while  giving  evidence  of  Portugal's 
efforts  to  see  that  the  neutrality  of  the  port  was  respected, 
did  not  satisfy  the  English  authorities.  The  latter  still 
alleged  that  no  doubt  existed  as  to  the  fact  that  Lorenzo 
Marques  was  being  used  by  Boer  agents  as  a  recruiting 
station  for  the  Transvaal  forces.  It  was  asserted  that  large 
numbers  of  "  men  of  military  stamp "  jlanded  daily  at 
Lorenzo  Marques  from  all  parts  of  Europe,  and  were  al- 
lowed to  proceed  to  the  Transvaal  for  the  purpose  of  either 
actually  enlisting  with  the  Boers  or  working  the  government 
mines.  It  was  alleged,  too,  that  a  number  of  these  new- 
comers were  "  smart  looking  men,"  evidently  officers.  The 
majority,  however,  were  of  a  low  class,  mostly  penniless 
adventurers.  On  February  2  the  report  was  made  to  the 
English  authorities  that  twenty  of  the  better  sort,  many. 


2ii]  Neutrality  of  European  Powers.  59 

wearing  riding  boots  and  carrying  field  glasses,  had  left 
Lorenzo  Marques  for  the  Transvaal,  and  as  tending  to  throw 
suspicion  upon  the  purpose  of  their  journey,  a  Transvaal 
detective  was  "  most  assiduous  "  in  his  attentions  to  them.10 
The  influence  of  the  consul  of  Holland  largely  defeated  all 
efforts  to  stop  entirely  the  imperfect  fulfillment  of  the  duties 
of  neutrality  incumbent  upon  the  port. 

At  other  places  any  attempts  to  convey  prohibited  goods 
into  the  Transvaal  were  summarily  stopped.  Arms  and 
ammunition  which  the  Boers  attempted  to  land  at  Inham- 
bane  were  seized  by  the  Portuguese  customs  authorities  on 
the  ground  that  they  were  consigned  under  a  false  descrip- 
tion. The  consignment  was  not  a  large  one  and  the  attempt 
was  evidently  made  as  an  experiment.  This  incident,  too, 
indicates  the  extremity  to  which  the  Transvaal  authorities 
had  been  reduced  by  the  increased  watchfulness  at  Lorenzo 
Marques,  for  the  distance  from  the  port  of  Inhambane  to 
the  Transvaal  could  be  covered  only  by  native  carriers  and 
required  fourteen  days  for  the  trip.  The  difficulties  in 
evading  the  customs  surveillance  at  Lorenzo  Marques  had 
also  been  increased  by  the  fact  that  most  of  the  steamship 
companies  which  had  at  first  employed  the  Dutch  consul  as 
their  agent  had  later  relieved  him  of  this  duty.  But,  not- 
withstanding the  continued  protests  by  England,  the  Hague 
Government  seemed  reluctant  to  take  any  official  notice  of 
the  evident  partiality  of  its  consular  agent.  With  reference 
to  the  English  protests  the  Administration  took  the  view  that 
while  acting  as  the  representative  of  the  Transvaal  and 
Orange  Free  State  during  the  war  Mr.  Pott  was  only  fulfill- 
ing the  duties  incumbent  upon  him  in  this  triple  capacity. 

As  the  war  progressed,  although  the  administration  of 
the  customs  at  Lorenzo  Marques  was  made  more  efficient, 
this  improvement  was  inversely  proportional  to  the  successes 
of  the  Boer  forces  in  the  field.  Under  the  circumstances  it 
was  almost  impossible  for  England  to  prove  that  actual 
governmental  support  had  been  given  to  any  scheme  for 

"London  Times,  Weekly  Ed.,  Feb.  5,  1900,  p.  84,  col.  2. 


60  Neutral  Rights  in  the  Anglo-Boer  War.         [212 

augmenting  the  military  forces  of  the  Transvaal,  but  the 
whole  manipulation  of  the  customs  seemed  to  be  controlled 
by  a  weak  administration  not  too  scrupulous  in  seeing  that  an 
impartial  view  was  taken  of  the  situation.  The  failure  of 
the  Boers  to  attain  their  ends  in  the  field  did  more  to  improve 
the  efficiency  of  the  administration  of  the  customs  than  the 
protests  of  England.  It  seems  unquestionable  that  the  re- 
sources of  the  Transvaal  had  induced  the  Portuguese  author- 
ities at  Lorenzo  Marques  to  display  toward  the  Boers  an 
attitude  which,  according  to  obsolete  ideas,  was  termed 
benevolent  neutrality.  But  as  the  Boer  hopes  declined  the 
Portuguese  authorities  increased  their  vigilance,  and  in  the 
end  went  as  far  in  favor  of  England  as  they  had  previously 
gone  in  their  benevolent  attitude  to  the  Republics.  Passen- 
gers arriving  by  German  and  other  steamers  were  refused 
passports  upon  the  instance  of  the  British  consul  where  there 
was  a  strong  suspicion  that  they  were  entering  the  Trans- 
vaal for  purposes  hostile  to  Great  Britain. 

Portugal,  too,  refused  to  accept  the  offer  of  the  Trans- 
vaal to  advance  the  amount  required  of  the  Lisbon  Govern- 
ment by  the  Beirne  Arbitration  Award.11  The  Portuguese 
Government,  in  courteously  declining  the  offer,  stated  that 
the  amount  had  already  been  provided.  Great  Britain,  who 
already  held  a  preemptive  title  to  Delagoa  Bay,  was  also 
ready  to  advance  the  money,  but  was  denied  this  privilege 
by  Portugal. 

By  August,  1900,  it  had  become  evident  that  the  Boer 
hopes  of  bringing  the  war  to  any  sort  of  favorable  con- 
clusion were  doomed  to  failure.  On  August  4  all  the  cus- 
toms officials  at  Lorenzo  Marques  were  dismissed  and  their 
places  filled  by  military  officers,  and  a  force  of  twelve  hun- 
dred men  was  sent  out  from  Lisbon  two  days  later.  The 
Portuguese  frontier  was  put  under  a  strong  guard  and  all 
Boer  refugees  who  arrived  were  summoned  before  the  Gov- 
ernor and  warned  against  carrying  on  any  communications 
with  the  Transvaal  Government  or  with  the  Boer  forces  still 

11  London  Times,  Weekly  Ed.,  April  20,  1900,  p.  244,  col.  2. 


213]  Neutrality  of  European  Powers.  61 

in  the  field.  Notice  was  given  them  that  if  they  were  de- 
tected in  such  transactions  they  would  be  sent  out  of  Por- 
tuguese territory  and  the  right  of  asylum  denied  them.  And 
in  the  further  performance  of  her  neutral  duties  at  such  a 
time  Portugal  assumed  an  entirely  correct  attitude. 

In  September  three  thousand  Boers  evacuated  their  posi- 
tion along  the  frontier  and  surrendered  to  the  Portuguese 
Governor.  They  were  lodged  in  the  barracks  at  Lorenzo 
Marques  and  later,  to  prevent  any  disturbance  in  the  town 
that  might  be  caused  by  their  presence,  were  removed  to  the 
Portuguese  transports  lying  in  the  harbor.  The  Governor 
gave  notice  to  the  English  commander  who  had  occupied  the 
position  evacuated  by  the  Boers  that  all  the  Transvaal 
troops  which  had  surrendered  were  being  guarded  and  would 
not  be  allowed  to  rejoin  the  Boer  forces  still  in  the  field.  A 
number  of  the  refugees  agreed  to  surrender  to  the  British 
commander  as  prisoners  of  war  upon  the  stipulation  that 
they  would  not  be  sent  out  of  the  country,  and  thus  better 
terms  were  obtained  than  by  those  captured  in  the  field. 
Others  who  surrendered  to  Portugal  were  transported  by 
Portuguese  ships  to  Lisbon,  land  being  assigned  them  in 
the  country  where  they  were  given  permission  to  settle. 

In  other  respects,  also,  during  the  later  phases  of  actual 
warfare,  Portugal  maintained  a  correct  attitude.  Especially 
was  this  attitude  noticeable  with  reference  to  the  investiga- 
tion of  the  conduct  of  the  Dutch  consul  at  Lorenzo  Marques. 
In  spite  of  the  protests  of  Great  Britain  and  of  Portugal  as 
to  his  unneutral  attitude  he  had  been  continued  in  his  posi- 
tion. But  on  December  7,  1900,  the  strain  to  which  the  rela- 
tions between  the  two  Governments  had  been  put  reached 
the  breaking  point.  The  Dutch  Minister,  Dr.  Van  Weede, 
withdrew  from  Lisbon  and  at  the  same  time  the  Portuguese 
Minister  at  the  Hague,  Count  de  Selin,  returned  to  Lisbon. 
The  reason  for  this  technical  breaking  off  of  friendly  rela- 
tions was  explained  on  December  n.  A  member  of  the 
Second  Chamber  at  the  Hague,  M.  Van  Bylandt,  questioned 
the  Minister  for  Foreign  Affairs  as  to  the  cause  of  the  diffi- 


62  Neutral  Rights  in  the  Anglo-Boer  War.         [214 

culties  between  the  two  Governments.  M.  Beaufort,  in  his 
explanation  of  the  situation,  stated  that  as  early  as  November 
17,  1899,  the  Dutch  Government  had  been  informed  that  it 
would  be  necessary  for  the  Lisbon  authorities  to  cancel  the 
exequatur  of  Mr.  Pott  as  consul  at  Lorenzo  Marques.  This 
cancellation  of  the  agent's  credentials,  it  was  alleged,  was 
deemed  necessary  on  account  of  irregularities  with  reference 
to  the  transshipment  of  contraband  of  war  from  Lorenzo 
Marques  to  the  Transvaal.  It  was  further  represented  to 
the  Dutch  Government  that  the  consul  under  suspension  had 
made  an  improper  use  of  his  position  as  the  acting  consular 
agent  for  the  Free  State  and  the  Transvaal;  he  had  taken 
advantage  'of  the  consular  privileges  accorded  him  at  Lo- 
renzo Marques  as  the  representative  of  a  neutral  Power  at 
a  neutral  port;  the  courteous  communications  made  by  the 
Portuguese  Government  prior  to  the  final  withdrawal  of  his 
exequatur  had  not  received  from  the  Hague  Government  the 
attention  they  deserved;  every  opportunity  had  been  given 
the  Dutch  Government  to  take  the  initiative  in  the  matter  by 
merely  recalling  their  agent,  but  this  step  had  not  been  taken. 
M.  Beaufort  admitted  that  this  had  been  the  attitude  of 
the  Portuguese  Government,  but  asserted  that  he  had  not 
cared  to  suspend  Mr.  Pott  without  an  inquiry,  and  for  this 
purpose  had  merely  granted  him  leave  of  absence  for  three 
months.  This  action,  he  said,  had  not  been  favorably  re- 
ceived in  Lisbon,  and  he  had  therefore  thought  it  necessary 
to  warn  the  Portuguese  Government  that  the  withdrawal  of 
the  consul's  exequatur  would  be  considered  an  unfriendly  act. 
But  notwithstanding  the  warning,  the  consul's  credentials 
had  been  cancelled  by  the  Lisbon  Government.  As  a  conse- 
quence of  this  act  M.  Beaufort  had  requested  the  Dutch 
Minister  at  Lisbon  to  come  to  the  Hague  that  he  might 
take  part  in  a  personal  interview  with  the  consul  under  sus- 
pension. Later,  M.  Beaufort  stated  that  the  specific  incidents 
upon  which  Mr.  Pott's  conduct  had  been  arraigned  were  the 
illegal  importation  of  heliographic  apparatus  for  the  Trans- 
vaal artillery  and  a  wrongful  grant  of  passports  in  his  dual 


215]  Neutrality  of  European  Powers.  63 

capacity  as  consular  agent  for  Holland  and  the  Republics.12 
In  the  end  diplomatic  relations  were  resumed  between  the 
two  Governments.  Holland,  after  an  investigation  of  the 
charges  against  her  consul,  acquiesced  in  the  action  of  the 
Lisbon  Government.  But  the  incident  served  to  demon- 
strate the  fact  that  the  Government  at  Lisbon  was  aware  of 
the  inefficient  manner  in  which  the  duties  of  neutrality  had 
been  enforced  at  Lorenzo  Marques  by  the  port  adminis- 
tration. 

From  this  time  on  to  the  close  of  the  war  the  Portuguese 
Government  displayed  greater  care  in  asserting  the  neutral 
character  of  the  port.  By  placing  the  town  under  military 
supervision  this  purpose  was  more  surely  attained,  and  the 
only  other  charge  made  against  Portugal  for  the  failure  to 
perform  a  neutral  duty  came  from  the  Transvaal  Govern- 
ment, an  allegation  of  a  more  serious  character  than  any  that 
had  been  advanced  by  the  English  Government.  The 
grounds  upon  which  Portugal  granted  a  privilege  of  war 
to  one  of  the  belligerents  under  protest  from  the  other  have 
not  been  made  so  clear  as  the  reasons  which  led  to  her 
apparent  dereliction  of  duty  at  Lorenzo  Marques.  This  inci- 
dent placed  the  Portuguese  Government  in  an  unfavorable 
light  with  regard  to  its  duty  in  the  full  and  impartial  per- 
formance of  the  obligation  of  neutrality.  British  troops 
were  allowed  to  pass  across  Portuguese  territory  in  order 
to  reach  belligerent  British  territory  commanding  the  Trans- 
vaal position  on  the  north.  From  Rhodesia,  the  nominal 
objective  point  in  this  movement  of  troops,  the  Transvaal 
might  be  conveniently  invaded  from  the  north,  as  it  was 
already  attacked  on  the  south. 

Early  in  the  war  the  British  South  Africa  Company,  a 
chartered  company  which  was  responsible  for  the  adminis- 
tration of  the  Rhodesian  Government,  became  apprehensive 
as  to  the  fate  of  this  section  of  the  country  should  the  Boers 
decide  to  invade  it.  Troops  had  been  raised  in  Rhodesia 
for  the  war  but  were  employed  outside  the  colony.  It  was 

a  London  Times,  March  i,  1900,  p.  5,  col.  3. 


64  Neutral  Rights  in  the  Anglo-Boer  War.         [216 

asserted  that  this  fact  had  left  the  province  in  such  an  un- 
protected state  that,  aside  from  the  fear  of  a  Boer  invasion, 
a  Kaffir  uprising  was  imminent. 

Mr.  Chamberlain  had  refused  to  send  forces  into  Rhodesia 
in  December  upon  the  ground  that  troops  could  not  be 
spared.  But  it  was  finally  arranged  to  send  five  thousand 
mounted  men,  some  of  them  to  be  enlisted  in  Rhodesia  and 
all  of  them  to  be  furnished  outside  of  England.  Before  the 
end  of  January,  1899,  a  commander  had  been  appointed 
from  the  English  army,  and  it  was  expected  that  the  forces 
would  be  upon  the  borders  of  Bechuanaland  by  the  end 
of  May. 

Difficulty  at  once  arose  with  reference  to  the  right  of  pass- 
age of  these  troops,  military  stores,  and  in  fact  a  full  equip- 
ment for  warlike  purposes.  There  was  not  much  choice 
of  routes.  Those  through  the  Transvaal  and  through 
Bechuanaland  were  closed.  The  only  route  left  was  through 
the  port  of  Beira.  This  course  necessitated  the  passage  of 
belligerent  troops  across  two  hundred  miles  of  neutral  terri- 
tory controlled  by  Portugal  as  territorial  sovereign.  Beira, 
situated  about  four  hundred  and  fifty  miles  north  of  Lo- 
renzo Marques,  bears  nearly  the  same  relation  topograph- 
ically to  British  Mashonaland  and  to  British  Rhodesia  that 
Delagoa  Bay  does  to  the  Transvaal  and  the  Orange  Free 
State.  A  railway  nearing  completion  formed  an  almost 
continuous  route  from  Beira  to  Salisbury  in  Rhodesia,  and 
once  in  the  latter  province  troops  would  be  in  a  position  to 
invade  the  Transvaal. 

Under  ordinary  circumstances  it  would  have  been  a  dis- 
tinct breach  of  neutrality  on  the  part  of  Portugal  to  allow 
the  passage  across  her  territory  of  the  troops  of  one  of  the 
belligerents,  since  the  obvious  destination  could  only  be  the 
country  of  the  other  belligerent,  with  whom  she  was  on 
friendly  terms.  Portugal  had  granted  to  England  in  1896 
the  right  of  passage  for  a  field  force  to  be  used  against  the 
natives  in  Mashonaland.13  But  that  was  a  case  of  warfare 

"Times  Military  History  of  the  War  in  South  Africa,  Vol.  IV, 
P-  365- 


2 1 7]  Neutrality  of  European  Powers.  65 

against  a  savage  tribe,  and  was  not  to  be  considered  as  a 
reliable  precedent  for  similar  action  against  a  civilized  State 
such  as  the  South  African  Republic. 

The  principles  of  the  international  law  of  modern  times 
leave  little  or  no  doubt  as  to  the  proper  course  for  a  neutral 
to  follow  in  such  a  case.  Oppenheim  says :  "  In  contra- 
distinction to  the  practice  of  the  eighteenth  century,  it  is 
now  generally  recognized  that  a  violation  of  the  duty  of 
impartiality  is  involved  when  a  neutral  allows  a  belligerent 
the  passage  of  troops  or  the  transport  of  war  material  over 
his  territory.  And  it  matters  not  whether  a  neutral  give 
such  permission  to  one  of  the  belligerents  only,  or  to  both 
alike."14  And  Lawrence  points  out  that  "  it  is  now  ac- 
knowledged almost  universally  that  a  neutral  state  which 
permits  the  passage  of  any  part  of  a  belligerent  army 
through  its  territory  is  acting  in  such  a  partial  manner  as 
to  draw  down  upon  itself  just  reprobation."  The  permis- 
sion given  of  necessity  "  to  further  a  warlike  end "  is 
"  therefore  inconsistent  with  the  fundamental  principle  of 
state  neutrality."  "  These  considerations,"  he  says,  "  have 
influenced  practice  during  the  present  century,  and  the 
weight  of  modern  precedent  is  against  the  grant  of  passage 
in  any  case."15 

Mr.  Baty,  who  has  made  a  careful  study  of  the  prece- 
dents upon  the  subject,  states  that  while  "  writers  vary  in 
their  treatment  of  the  question  "  of  the  passage  of  troops 
over  neutral  territory,  "  the  modern  authorities  are  all  one 

"International  Law  (1906),  Vol.  II,  p.  345. 

"  Principles  of  International  Law,  p.  526.  The  older  writers  dif- 
fered from  this  view.  Grotius  maintained  the  right  of  passage, 
even  by  force;  Vattel  practically  agreed  with  Grotius  that  it  might 
be  taken  by  force,  but  contended  that  it  should  be  asked  and  force 
used  only  under  extreme  necessity,  or  when  the  refusal  was  unjust; 
Wheaton  denied  that  the  right  of  passage  was  a  "perfect  right" 
and  consequently  could  not  be  enforced  against  the  will  of  the 
neutral;  Hall,  International  Law  (1880),  §219,  points  out  that  more 
recent  writers  take  an  opposite  view,  namely,  that  a  grant  of  passage 
is  incapable  of  impartial  distribution.  See  also  Wheaton,  Inter- 
national Law,  §427;  Vattel.  Droit  des  gens,  III,  §  no;  Calvo,  Droit 
international,  3d  Ed.,  Ill,  §§2344-2347. 


66  Neutral  Rights  in  the  Anglo-Boer  War.         [218 

way."16  He  points  out  that  the  jurists  of  the  first  half 
of  the  nineteenth  century,  with  the  possible  exception  of 
Kluber,  were  "  unanimous  in  following "  Grotius  and 
Vattel,  and  allowing  neutrals  to  permit  belligerents  passage 
as  long  as  they  did  it  impartially.  But  since  the  middle 
of  the  century  a  total  and  violent  change  in  the  opinion  of 
authors  has  operated.  Every  modern  author  holds  that 
passage  is  now  a  benefit  which  must  be  refused  absolutely, 
and  not  offered  impartially.17 

In  February  the  Transvaal  Government  had  attempted 
to  bring  troops  into  Rhodesia  by  way  of  Portuguese  terri- 
tory. Portugal  had  promptly  sent  out  forces  to  prevent 
such  an  evasion  of  Portuguese  neutrality  and  had  guarded 
the  railway  bridges  along  the  line  to  Rhodesia.  And  in 
March  Great  Britain  had  met  with  a  refusal  to  allow  a  large 
quantity  of  foodstuffs,  mules,  and  wagons  to  be  landed  at 
Beira  for  the  purpose  of  transportation  to  Rhodesia.  Never- 
theless, on  April  9,  General  Sir  Frederick  Carrington  landed 
at  Cape  Town  under  orders  to  proceed  immediately  to 
Beira.18  He  was  to  use  transports  put  at  his  disposal  by 
his  government  for  the  purpose  of  collecting  a  full  equip- 
ment for  his  command  of  five  thousand  men  to  be  mobilized 
at  Beira,  and  from  that  port  was  to  enter  Rhodesia.  This 
province  was  then  to  be  made  the  base  for  an  expedition 
against  Pretoria  in  concert  with  the  English  forces  advanc- 
ing from  the  south. 

It  is  undoubted  that  the  laws  of  neutrality  demanded  of 
Portugal  not  only  an  impartial  treatment  of  both  belliger- 
ents, as  the  earlier  writers  held,  but  an  absolute  prohibi- 
tion against  such  a  warlike  expedition  by  either  of  them, 
as  unanimously  held  by  all  the  more  recent  authorities.  At 
the  time  English  public  expression  contended  that  absolute 
equality  of  neutrality  was  not  incumbent  upon  independent 
States  in  the  performance  of  their  neutral  duties.  English 

18  International  Law  in  South  Africa,  p.  71. 

"Ibid.,    p.    73; 

"Times  Military  History  of  the  War  in  South  Africa,  Vol.  IV, 
P-  369- 


219]  Neutrality  of  European  Powers.  67 

writers  spoke  of  a  "  benevolent  neutrality  "  as  possible,  and 
cited  such  cases  as  that  in  1877,  when  Roumania,  before  taking 
an  active  part  in  the  war  against  Turkey,  permitted  Rus- 
sian troops  to  march  through  her  territory ;  and  the  incident 
which  occurred  during  the  Neuchatel  Royalist  insurrection 
in  1856  when'  the  Prussian  Government  requested  permis- 
sion to  march  through  Wurtemberg  and  Baden  "  without 
any  idea  of  asking  those  states  to  abandon  their  neutrality, 
or  assist  Prussia  against  Switzerland." 

It  was  alleged  upon  the  authority  of  such  precedents  that 
the  privilege  of  passage  for  troops  might  be  granted  by 
Portugal  to  England  without  a  breach  of  neutrality  really 
occurring.  Portugal  would  be  merely  giving  her  neutrality 
a  benevolent  character  towards  one  of  the  belligerents, 
which  it  was  asserted  she  was  perfectly  entitled  to  do,  a 
view  of  the  situation  which  is  too  obsolete  in  the  light 
of  modern  times  to  need  criticism.  Although  public  opin- 
ion throughout  Europe  is  usually  hostile  to  England  when 
she  is  at  war,  the  general  condemnation  of  the  proposed 
use  of  neutral  territory  seems  therefore  to  have  been  well 
founded  in  this  particular  case. 

The  Cabinet  at  Paris  refused  to  entertain  any  question 
or  debate  on  the  proposed  passage  of  English  troops  through 
Portuguese  territory.  On  April  n,  however,  a  discussion 
of  the  subject  occurred  in  the  Chamber  of  Deputies  in 
which  two  interpellations  were  announced  by  the  President. 
One  of  these  questioned  the  Government  as  to  what  steps 
had  been  taken  to  protect  French  interests  in  Mozambique; 
the  other  had  reference  to  the  proposed  passage  of  Eng- 
lish troops  inland  from  Beira.  M.  Delcasse  said  that  the 
Chamber  did  not  feel  that  the  Government  should  discuss 
a  current  question  of  international  law,  but  he  pointed  out 
the  fact  that  France  with  the  other  Great  Powers  had  de- 
clared her  neutrality  at  the  beginning  of  hostilities.  He 
added,  however,  that  it  was  not  the  part  of  France  to 
guarantee  the  neutrality  of  others.  One  member  asserted 
that  the  proposed  act  would  be  a  distinct  violation  of  her 


68  Neutral  Rights  in  the  Anglo-Boer  War.         [220 

neutral  duties  by  Portugal.  Another  declared  that  Europe, 
by  concerted  action,  should  prevent  such  a  flagrant  viola- 
tion of  neutrality  during  a  war  in  which  a  small  nation  was 
already  contending  against  great  odds;  that  France,  sur- 
rounded by  neutral  nations,  could  not  afford  to  see  such 
a  precedent  established  and  should  appeal  to  Europe  to 
join  with  her  in  protesting. 

Although  such  concerted  action  as  was  proposed  by  the 
different  members  was  improbable,  and  although  the  pro- 
posals may  have  been  dictated  by  the  usual  French  bias  in 
situations  where  English  interests  are  at  stake,  these  opin- 
ions indicate  pretty  well  the  real  sentiment  in  Europe  at 
the  time. 

The  Transvaal  Government  formally  notified  Portugal 
that  the  passage  of  British  troops  and  munitions  of  war 
through  Beira  would  be  considered  in  the  Transvaal  as 
tantamount  to  hostile  action.  Nevertheless,  on  May  I,  the 
Chamber  of  Deputies  at  Lisbon  rejected  an  interpellation 
made  by  one  of  its  members  to  question  the  action  of  the 
Government  with  reference  to  the  privilege  which  Great 
Britain  sought.  The  Minister  for  Foreign  Affairs,  how- 
ever, stated  that  the  Transvaal  Government  had  not  ordered 
the  Portuguese  consul  to  leave  Pretoria.  He  denied  em- 
phatically that  any  incident  whatever  had  followed  Portu- 
gal's notification  to  the  Transvaal.  When  further  inter- 
rogated, the  Minister  declared  that  the  English  troops  had 
been  granted  permission  to  use  the  railway  inland  from 
Beira  upon  the  plea  of  treaty  rights  already  possessed  by 
Great  Britain.  No  power,  he  asserted,  had  protested  ex- 
cept the  South  African  Republic.  It  was  promised  that 
the  Government  would  later  justify  its  action  in  granting 
the  permission  by  producing  the  documents  showing  the 
right  of  England  to  the  privilege,  but  it  was  not  considered 
convenient  at  that  time  to  discuss  the  question.19 

The  protest  of  the  Transvaal  against  the  alleged  breach 
of  neutrality  on  the  part  of  Portugal  was  without  effect, 

19  London  Times,  April  21,  1900,  p.  7,  col.  3. 


22 1  ]  Neutrality  of  European  Powers.  69 

and  this  was  the  only  means  the  Republic  had  of  declaring 
itself.  To  have  entered  upon  hostile  action  against  Por- 
tugal at  that  time  would  have  had  only  one  result,  the 
stoppage  of  all  communication  with  the  outside  world  by 
way  of  Delagoa  Bay.  The  British  forces  were  sent  into 
Rhodesia,  and  though  the  subsequent  part  they  played  in 
the  war  was  not  important  the  purpose  of  the  expedition 
was  admitted.  It  was  to  cut  off  any  possibility  of  a  re- 
treat northward  into  British  territory  by  the  Boer  forces 
which  were  being  driven  back  by  the  English  advance  upon 
Pretoria.  The  British  military  plan  was  that  General  Car- 
rington  should  march  with  his  forces  and  reach  Pretoria 
from  the  north  at  the  same  time  that  General  Roberts 
reached  that  point  from  the  south.20  Thus,  the  end  for 
which  the  troops  were  to  be  used  was  not  to  quell  an  insur- 
rection of  the  natives  in  Rhodesia,  as  was  alleged,  but  to 
incorporate  the  expedition  into  the  regular  campaign  of  the 
war  against  the  Republics.  This  being  the  case,  the  con- 
tractual grounds  upon  which  the  English  Government 
claimed  the  right  of  passage  should  have  been  beyond  ques- 
tion in  order  to  furnish  a  justification  for  Portugal  or  for 
England  in  what  is  viewed  by  international  law  writers  of 
the  present  day  as  a  distinct  breach  of  neutrality.  When 
the  expedition  was  sent  out  the  statement  was  made  that 
England  was  merely  availing  herself  of  existing  treaty 
rights,  but  it  was  felt  necessary  to  add  that  the  action  was 
not  illegal  as  was  that  of  the  Boers  in  making  Delagoa  Bay 
their  virtual  base  earlier  in  the  war.  And  on  May  31,  in 
legalizing  the  proceeding,  the  Cabinet  at  Lisbon  also  felt 
impelled  to  say  that  the  Portuguese  Government  had  not 
become  an  instrument  of  British  ambition ;  that  it  was  not 
a  question  of  putting  into  execution  in  the  territory  of 
Mozambique  conventions  recently  concluded  with  England, 
but  merely  of  profiting  by  stipulations  agreed  upon  in  the 
treaty  of  1891  between  Great  Britain  and  Portugal.  Presi- 
dent Kruger  was,  therefore,  informed  that  the  legality  of 
the  incident  was  not  to  be  questioned  at  Pretoria. 

20  Times  Military  History,  Vol.  IV,  p.  364  ff. 


7O  Neutral  Rights  in  the  Anglo-Boer  War.         [222 

The  consensus  of  opinion  among  European  Powers  was 
that  the  landing  of  troops  at  Beira  and  the  passage  by  rail 
to  Rhodesia  with  the  consent  of  Portugal  constituted  a 
breach  of  neutrality  on  the  part  of  the  latter.  The  opinion 
was  freely  expressed  that  the  British  Government  not  only 
placed  a  strained  interpretation  upon  the  only  basis  for  her 
action,  the  treaty  of  1891,  but  that  even  upon  this  inter- 
pretation she  possessed  no  real  servitude  over  the  territory 
used  by  her  for  warlike  purposes.  The  only  claim  of  justi- 
fication advanced  by  the  British  Government  which  would 
appear  at  all  tenable  rests  upon  the  statement  of  Calvo: 
"  It  may  be  that  a  servitude  of  public  order,  or  a  treaty  made 
antecedently  to  the  war,  imposes  on  a  neutral  State  the  ob- 
ligation of  allowing  the  passage  of  the  troops  of  one  bel- 
ligerent." "  In  such  a  case,"  Calvo  concludes,  "  the  ful- 
filment of  the  legal  obligation  cannot  be  regarded  as  an 
assistance  afforded  to  that  belligerent  and  a  violation  of  the 
duties  of  neutrality."  21 

Basing  his  argument  largely  upon  this  authority,  Mr. 
Baty  asserts  that  Calvo  approves  the  granting  of  passage 
where  this  privilege  has  been  secured  by  previous  treaty. 
But  the  following  statement  which  he  cites  from  Calvo, 
taken  in  connection  with  the  rule  given  above,  would  appear 
to  deny  this  conclusion :  "  During  war  neutrals  may  oppose, 
even  by  force,  all  attempts  that  a  belligerent  may  make  to 
use  their  territory,  and  may,  in  particular,  refuse  one  of  the 
belligerents  a  passage  for  its  armies  to  attack  the  enemy; 
so  much  the  more  so,  inasmuch  as  the  neutral  who  should 
allow  a  passage  of  the  troops  of  one  belligerent  would  be 

21  Baty,  Int.  Law  in  South  Africa,  p.  73,  quoting  Calvo.  But  Calvo 
calls  attention  to  the  fact  that  this  is  his  own  "  exception  to  the 
general  rule,"  in  support  of  which  he  cites  no  authorities  and  only 
one  precedent — that  of  the  passage  of  foreign  troops  across  the 
Canton  of  Schaffhausen  in  1867  by  virtue  of  a  prior  treaty  between 
Switzerland  and  the  Grand  Duchy  of  Baden.  Obviously  no  general 
conclusion  can  be  drawn  from  the  conduct  of  a  neutralized  state, 
such  as  Switzerland.  The  general  rule,  not  the  exception,  is  sought 
in  determining  international  rights.  Droit  international.  3d  Ed., 
HI,  §2347- 


223]  Neutrality  of  European  Powers.  71 

false  to  its  character  and  would  give  the  other  just  cause 
of  war." 22 

What  Calvo  says  is :  "  Tous  les  publicistes  sont  d'ac- 
cord  pour  admettre  que  le  territoire  d'une  nation  con- 
stitue  une  veritable  propriete  .  .  .  le  territoire  neutre 
doit  etre  a  1'abri  de  toutes  les  entreprises  des  belligerants 
de  quelque  nature  qu'elles  soient;  les  neutres  ont  le 
droit  incontestable  de  s'opposer  par  tous  les  moyens  en  leur 
pouvoir,  meme  par  la  force  des  armes,  a  toutes  les  tentatives 
qu'un  belligerant  pourrait  faire  pour  user  de  leur  terri- 
toire." 23  He  also  calls  attention  to  the  fact  that  Grotius, 
Wolff  and  other  authors  held  that  a  belligerent,  "dont  la 
cause  est  juste  peut,  pour  aller  a  la  rencontre  de  son  ennemi, 
traverser  avec  ses  armees  le  territoire  d'une  nation  neutre." 24 
But  his  statement  of  the  modern  rule  is  conclusive :  "  Par 
centre,  Heffter,  Hautefeuille,  Manning  et  d'autres  auteurs 
modernes  se  sont  avec  juste  raison  eleves  centre  des  prin- 
cipes  dans  lesquels  ils  entrevoient  la  negation  implicite  des 
droits  et  des  devoirs  stricts  de  la  neutralite.  A  leur  yeux, 
la  nation  neutre  qui  consent  au  passage  les  troupes  de  1'une 
des  parties  belligerantes  manque  a  son  caractere  et  donne 
a  1'autre  partie  un  juste  motif  de  lui  declarer  la  guerre."25 

Mr.  Baty,  without  reaching  any  definite  conclusion  in  the 
matter,  admits  that  the  point  to  be  decided  in  any  case  is 
not  so  much  the  fact  that  there  is  an  antecedent  treaty,  as  the 
nature  of  that  treaty.  He  says,  "  If  it  granted  a  real  right 
of  way  of  the  nature  of  a  right  in  rent  there  is  no  reason 
why  the  way  should  be  stopped  against  troops  any  more  than 
why  a  purchaser  of  territory  should  be  debarred  from  using 
it  as  a  base  of  military  operations."  But  he  points  out, 
"If  the  treaty  only  created  a  right  in  personam  the  case  is 
different."  In  the  latter  case  it  is  obvious  that  the  power 
which  claims  the  way  depends  entirely  on  the  promise  of  the 

22  Int.  Law  in  South  Africa,  p.  73.     This  quotation  is  slightly  mis- 
leading, but  even  as  used  it  clearly  denies  the  English  claim.  , 
"Calvo,  §2344. 
"Ibid.,  §2345. 
28  Ibid.,  §2346. 


72  Neutral  Rights  in  the  Anglo-Boer  War.         [224 

territorial  power  for  the  exercise  of  that  advantage.  "In 
such  a  case,"  he  concludes,  "  it  may  well  be  that  the  per- 
formance of  its  promise  by  the  territorial  power  becomes 
unlawful,  on  the  outbreak  of  war  between  the  promiser  and 
a  third  party."26  For  international  purposes  the  true  test  is, 
"  Could  the  power  claiming  the  right  of  way,  or  other  servi- 
tude, enforce  its  claims  during  peace  time  by  force,  without 
infringing  the  sovereignty  of  the  territorial  power?"  Mr. 
Baty's  opinion  is  that  "  if  it  could,  and,  if  the  servitude  is 
consequently  a  real  right,"  the  promisee  might  use  its  road 
in  time  of  war,  and  the  owner  of  the  territory  would  be 
"bound  to  permit  the  use,  without  giving  offense  to  the 
enemy  who  is  prejudiced  by  the  existence  of  the  servitude."  27 
But  he  continues,  "  If  the  right  of  way  is  merely  contractual, 
then  the  fulfillment  of  the  promise  to  permit  it  must  be  taken 
to  have  become  illegal  on  the  outbreak  of  war  and  the  treaty 
cannot  be  invoked  to  justify  the  grant  of  passage."  It  is 
asserted  that  in  the  former  case  where  a  real  servitude,  a 
right  in  rem,  was  possessed,  to  stop  the  use  of  the  road  would 
be  analogous  to  the  seizure  by  a  neutral  of  a  belligerent  war- 
ship to  prevent  its  being  used  against  the  enemy.  In  the 
case  where  the  treaty  grants  the  so-called  right  in  personam, 
a  merely  contractual  or  promissory  right  exists,  and  the  ex- 
ercise of  the  right  would  be  analogous  to  the  sale  of  a  war- 
ship to  a  belligerent  by  the  neutral  granting  the  permission 
stipulated  in  the  treaty.  Mr.  Baty  is  of  the  opinion  that 
while  the  belligerent  might  have  "  a  right  in  rem  to  the  ship 
so  far  as  the  civil  law  was  concerned,"  it  would  have  only  a 
"  quasi-contractual  right  in  personam  against  the  state  in 
whose  waters  it  lay,  to  allow  it  to  be  handed  over."  Ob- 
viously, the  performance  of  that  duty,  to  hand  over  the  ves- 
sel, "would  have  become  illegal  when  hostilities  broke 
out." 28 

We  have  seen  in  previous  pages  that  the  consensus  of 
opinion  among  international  law  authorities  of  modern  times 

28  Int.  Law  in  South  Africa,  p.  74. 
27  Ibid.,  p.  74. 
"Ibid.,  p.  75- 


225]  Neutrality  of  European  Powers.  73 

is  that  a  neutral  should  in  no  case  whatever  allow  the  use 
of  its  territory  for  the  purposes  of  a  belligerent  expedition 
against  a  State  with  which  it  is  upon  friendly  terms.  But 
granting  the  contention  made  by  Mr.  Baty  that  such  a  thing 
as  a  real  servitude  may  exist  in  international  relations,  let 
us  examine  the  stipulations  in  the  treaty  of  June  n,  1891, 
by  which  it  has  been  alleged  this  right  was  secured  to 
England. 

If  the  British  Government  possessed  a  right  in  rem,  then 
to  all  intents  and  purposes  it  owned  the  road  internationally, 
in  war  as  well  as  in  peace,  for  all  the  uses  to  which  a  road 
is  usually  put,  namely,  that  of  transporting  all  kinds  of 
goods,  warlike  or  peaceable.  If  England  only  possessed  a 
right  in  personam,  this  right  was  a  valid  one  in  times  of 
peace  and  for  the  purposes  stipulated  by  the  terms  of  the 
treaty,  but  became  void  in  time  of  war,  and,  being  purely 
personal  in  character,  depended  upon  the  promise  of  the 
State  through  which  the  road  passed.  In  the  former  case  it 
would  be  a  "  right  of  way "  in  peace  or  in  war.  In  the 
latter  case  it  would  be  merely  a  "  license  to  pass,"  for  the 
granting  of  which  Portugal  would  have  to  show  valid  rea- 
sons in  view  of  her  neutral  duties. 

The  parts  of  the  treaty  which  may  by  any  possibility  apply 
to  the  case  are  Articles  n,  12,  and  I4.29 

A  portion  of  Article  1 1  reads :  "  It  is  understood  that  there 
shall  be  freedom  for  the  passage  of  the  subjects  and  goods 
of  both  powers  across  the  Zambesi,  and  through  the  districts 
adjoining  the  left  bank  of  the  river  situated  above  the  con- 
fluence of  the  Shire,  and  those  adjoining  the  right  bank  of 
the  Zambezi  situated  above  the  confluence  of  the  river 
Luenha  (Ruenga),  without  hindrance  of  any  description 
and  without  payment  of  transit  dues."  30 

The  only  applicable  portion  of  Article    12  says:  "The 

"British  and  Foreign  State  Papers,  Vol.  83,  pp.  27-41,  Treaty 
between  Great  Britain  and  Portugal,  defining  the  Spheres  of  In- 
fluence of  the  two  Countries  in  Africa,  signed  at  Lisbon,  June  II, 
1891,  ratifications  exchanged  at  London,  July  3,  1891. 

&  Ibid.,  p.  34- 


74  Neutral  Rights  in  the  Anglo-Boer  War.         [226 

Portuguese  Government  engages  to  permit  and  to  facili- 
tate transit  for  all  persons  and  goods  of  every  description 
over  the  water-ways  of  the  Zambezi,  the  Shire,  the  Pungwe, 
the  Busi,  the  Limpopo,  the  Sabi  and  their  tributaries;  and 
also  over  the  land  ways  which  supply  means  of  communi- 
cation where  these  rivers  are  not  navigable."  31 

The  only  other  clause  of  the  treaty  which  bears  on  the 
case  is  a  portion  of  Article  14 :  "  In  the  interests  of  both 
Powers,  Portugal  agrees  to  grant  absolute  freedom  of  pas- 
sage between  the  British  sphere  of  influence  and  Pungwe 
Bay  for  all  merchandise  of  every  description  and  to  give  the 
necessary  facilities  for  the  improvement  of  the  means  of 
communication."32 

It  is  obvious  that  Article  14  could  not  apply  to  anything 
more  warlike  than  "merchandise"  being  transported  from 
Pungwe  Bay,  where  Beira  is  situated,  to  the  British  sphere 
of  influence.  It  is  admitted  by  Mr.  Baty  that  Article  12  is 
inapplicable  to  any  routes  other  than  the  water-ways  speci- 
fied and  the  land  routes  and  portages  auxiliary  to  them.  It 
is  also  admitted  that  the  only  other  stipulation  that  might 
apply,  Article  n,  "obviously  applies  to  the  territory  far 
to  the  north,  and  concerns  the  question  of  access  to  British 
Central  Africa." 33 

Mr.  Baty,  however,  contends  that  it  was  not  a  new  right, 
that  of  passage  through  Portuguese  territory,  but  was  one 
created  by  this  treaty.  Upon  the  supposition  that  if  the 
right  still  existed  in  times  of  war  it  must  have  been  by  virtue 
of  Article  n,  he  says,  "The  question  arises,  'Was  it  such  a 
grant  as  could  be  valid  in  war  time  ? ' " 34 

It  should  be  remembered  that  Mr.  Baty  has  concluded  that 
Calvo  asserts  the  possibility  of  a  neutral,  without  violating 
its  neutral  obligations,  allowing  a  belligerent  to  pass  troops 
over  neutral  territory  for  the  purpose  of  attacking  a  State 
which  is  on  friendly  terms  with  the  Government  granting 

31  British  and  Foreign  State  Papers,  Vol.  83,  p.  36. 
82  Ibid.,  pp.  39-40.     Italics  our  own. 

33  International  Law  in  South  Africa,  p.  76. 

34  Ibid.,  p.  76. 


227]  Neutrality  of  European  Powers.  75 

the  privilege.  Mr.  Baty  asserts  that  a  real  easement  ex- 
isted in  favor  of  England  if  she  might  "  force  her  way 
along "  the  routes  stipulated  in  the  treaty,  "  without  go- 
ing to  war  with  Portugal."  But  he  says  this  interpretation 
is  always  "  subject  to  the  consideration,  that  the  terms  of  the 
treaty  do  not  seem  to  contemplate  the  use  of  the  road  as  a 
military  road  at  all,"  a  conclusion  which  would  seem  to 
settle  the  question,  and  deny  that  any  shred  of  justification 
existed  for  the  use  to  which  neutral  territory  was  put  in 
time  of  war.  But  Mr.  Baty  in  the  same  breath  says :  "  There 
can  be  such  a  thing  as  a  military  road  across  neutral  terri- 
tory. The  German  Empire  has  such  a  road  across  the  can- 
ton of  Schaffhausen,  and  there  used  to  be  one  between 
Saxony  and  Poland.  But  it  seems  very  questionable  whether 
the  roads  indicated  by  the  treaty  of  1891  were  not  simply 
commercial,  and  not  for  the  purposes  of  war  at  all." 35  And 
this  English  writer  reluctantly  admits,  "The  treaty  has, 
therefore,  to  be  pressed  very  far  to  cover  the  grant  of  an 
overland  passage  for  troops  from  Beira  inland." 3e 

The  conclusion  reached  by  Mr.  Baty  is  far  more  favorable 
to  England  than  the  circumstances  of  the  case  warrant. 
"  One  may  regret,"  he  says,  "  that  the  British  Government 
should  have  found  it  necessary  to  place  a  somewhat  strained 
interpretation  on  a  treaty  which,  even  then  did  not  give 
them  in  anything  like  clear  terms,  an  absolute  servitude  of 
the  kind  contended  for."37 

Such  a  conclusion  is  misleading  in  the  first  place  because 
the  British  Government  was  contending  for  a  right  which 
was  not  recognized  among  independent  nations  at  the  time 
the  treaty  was  formed;  in  the  second  place,  granting  that 
ancient  authorities  may  have  declared  the  possibility  of  such 
a  right  existing  in  time  of  war,  the  stipulations  of  the  treaty 
itself  are  the  strongest  argument  against  the  interpretation 
used  by  England.  Hall  has  pointed  out  that,  "When  the 
language  of  a  treaty,  taken  in  the  ordinary  meaning  of  the 

"  International  Law  in  South  Africa,  p.  77. 
*  Ibid.,  p.  76. 
"  Ibid.,  p.  77. 


76  Neutral  Rights  in  the  Anglo-Boer  War.         [228 

words,  yields  a  plain  and  reasonable  sense,  it  must  be  taken 
to  be  read  in  that  sense."  38  The  only  reasonable  sense  in 
which  the  stipulations  of  the  British-Portuguese  treaty  of 
1891  could  be  taken  was  that  of  a  purely  commercial  agree- 
ment. The  spirit  of  the  treaty,  the  general  sense  and  the 
context  of  the  disputed  terms  all  seem  to  indicate  that  the 
instrument  considered  only  times  of  peace  and  became  abso- 
lutely invalid  with  reference  to  the  transportation  of  troops 
in  time  of  war.  The  authority  already  cited  says,  "  When 
the  words  of  a  treaty  fail  to  yield  a  plain  and  reasonable 
sense  they  should  be  interpreted  by  recourse  to  the  general 
sense  and  spirit  of  the  treaty  as  shown  by  the  context  of  the 
incomplete,  improper,  ambiguous,  or  obscure  passages,  or 
by  the  provisions  of  the  instrument  as  a  whole."  39 

Unquestionably  the  provisions  of  the  instrument  as  a 
whole  yield  but  one  meaning.  The  treaty  is  not  broad 
enough  to  sustain  the  passage  of  troops  in  time  of  war. 
Nor  would  there  seem  to  be  any  plausibility  in  the  claim 
that  certain  mutual  explanations  exchanged  between  the 
two  Governments  at  the  time  of  the  signing  of  the  treaty 
gave  tenable  ground  for  the  fulfilment  of  such  a  right  as 
that  which  was  granted  by  Portugal. 

The  words  of  the  Portuguese  notification  to  the  Transvaal 
condemn  the  action  of  Portugal  rather  than  justify  the  pro- 
ceeding in  view  of  the  requirements  of  the  neutrality  of  the 
present  day.  This  communication  read :  "  The  Portuguese 
Government  has  just  been  informed  that  in  accordance  with 
the  mutual  explanations  exchanged  in  the  treaty  of  1891 
with  regard  to  the  right  of  moving  troops  and  material  of 
war  through  the  Portuguese  territory  in  South  Africa  into 
English  territory  and  vice  versa,  the  British  Government 
has  just  made  a  formal  demand  for  all  troops  and  material 
of  war  to  be  sent  through  Beira  to  the  English  hinterland. 
The  Portuguese  Government  cannot  refuse  the  demand  and 
must  fulfill  a  convention  depending  on  reciprocity,  a  con- 
vention which  was  settled  long  before  the  present  state  of 

88  International  Law   (1880),  p.  281. 
"Hall,  Int.  Law  (1880),  p.  283. 


229]  Neutrality  of  European  Powers.  77 

war  had  been  foreseen.  This  agreement  cannot  be  regarded 
as  a  superfluous  support  of  one  of  the  belligerent  parties 
or  as  a  violation  of  the  duties  imposed  by  neutrality  or 
indeed  of  the  good  friendly  relations  which  the  Portuguese 
Government  always  wishes  to  keep  up  with  the  Government 
of  the  South  African  Republic."40  The  fact  that  the  as- 
sent of  the  Portuguese  Government  was  obtained  only 
after  ten  weeks  of  pressure  brought  to  bear  upon  the  Lisbon 
authorities  would  seem  to  indicate  that  intrigue  is  more 
potent  in  international  relations  than  accepted  precedent. 

In  its  reply  to  the  Portuguese  despatch  the  Transvaal 
reasonably  protested  that  the  treaty  in  question  had  not 
been  made  public  and  that  no  notice  of  it  had  been  re- 
ceived by  the  Republic  at  the  outbreak  of  war.41  It  was 
pointed  out  that  this  being  the  case  the  treaty  could  not  be 
applied  even  if  it  granted  the  right  contended  for  by  Eng- 
land. And  even  stronger  was  the  Transvaal  argument  that 
in  no  case  after  war  had  begun  could  such  a  treaty  be 
applied  by  a  neutral  State  to  the  disadvantage  of  third  par- 
ties. The  fact  of  neutrality  had  suspended  the  working  of 
the  agreement.  The  action  of  Portugal,  it  was  justly  alleged, 
put  her  in  the  position  of  an  enemy  instead  of  a  neutral. 

The  Transvaal  contention  would  appear  to  be  fully  war- 
ranted. In  the  light  of  modern  international  law  the  ac- 
tion of  England  in  sending  troops  through  neutral  Portu- 
guese territory  against  a  nation  at  peace  with  Portugal  was 
based  upon  a  flagrant  misreading  of  a  purely  commercial 
treaty.  The  action  of  the  Portuguese  Government  in  allow- 
ing this  to  be  accomplished  was  a  gross  breach  of  the  duties 
incumbent  upon  a  neutral  State  in  time  of  war. 

40  Times  Military  History  of  the  War  in  South  Africa,  Vol.  IV, 
p.  366,  note. 

41  Ibid.,  p.  367,  note. 


CHAPTER  III. 
CONTRABAND  OF  WAR  AND  NEUTRAL  PORTS. 

During  the  war  the  question  of  blockade  could  not  arise 
for  the  reason  that  neither  the  Transvaal  nor  the  Orange 
Free  State  possessed  a  seaport.  Lorenzo  Marques  being 
a  neutral  Portuguese  possession  could  not  be  blockaded  by 
the  English.  General  Buller,  commanding  the  British  land 
forces  in  South  Africa,  had  indeed  urged  that  such  a  decla- 
ration be  made,  but  it  was  realized  by  Great  Britain  that 
such  a  step  was  not  possible  under  the  laws  of  war.1  More 
stringent  measures,  however,  were  taken  to  prevent  the 
smuggling  of  contraband  through  Delagoa  Bay,  a  trans- 
action which  the  English  alleged  was  an  everyday  occur- 
rence. A  number  of  neutral  merchantmen  bound  for  this 
port  were  seized,  but  the  difficulty  experienced  by  England 
was  her  inability  to  prove  that  the  goods  on  board  were 
really  intended  for  the  enemy,  or  that  the  men  shown  as 
passengers  were  actually  proceeding  to  the  Transvaal  as 
recruits  for  the  Boer  forces  in  the  field. 

On  October  18  the  ship  Avondale  Castle  had  been  ar- 
rested by  the  English  gunboat  Partridge  and  ordered  to 
return  under  escort  to  Durban.  The  British  cruiser  Tar- 
tar there  took  over  £25,000  in  gold  which,  it  was  alleged, 
had  been  intended  for  the  Transvaal  Government.  It  was 
found,  however,  that  the  gold  was  consigned  to  the  Delagoa 
branch  of  the  Transvaal  Bank  from  the  Durban  branch 
of  the  same  institution.  The  allegation  against  the  con- 
signment, it  was  considered  by  the  prize  court,  did  not 
sufficiently  contaminate  the  shipment  since  the  destination 
was  proved  to  be  a  neutral  one  and  the  point  of  departure 
an  English  port.  In  February  the  gold  was  returned  to  the 

1  Sessional  Papers  of  the  House  of  Commons,  Royal  Commission 
on  the  War  in  South  Africa,  Appendices  to  Minutes  of  Evidence 
being  C.  1792  (1903). 

78 


231]          Contraband  of  War  and  Neutral  Ports.  79 

Bank  of  Durban  because  the  ultimate  destination  of  the 
consignment  did  not  warrant  the  presumption  that  it  was 
enemy's  property. 

In  November  a  French  steamer,  the  Cordoba,  was  hailed 
by  the  British  cruiser  Magicienne.  The  Cordoba  refused 
to  recognize  the  signal  to  halt  seventy  miles  out  from 
Lorenzo  Marques  and  was  brought  to  by  a  blank  shot. 
Her  papers,  however,  failed  to  show  any  guilt  on  her  part 
and  she  was  allowed  to  proceed  to  her  port  of  destination, 
Lorenzo  Marques. 

These  seizures  indicate  the  feeling  of  suspicion  which 
was  prevalent  in  England  that  apparently  innocent  descrip- 
tions in  the  bills  of  lading  of  steamers  arriving  at  Lorenzo 
Marques  concealed  contraband  of  war.  The  question  was 
raised  whether  the  English  commanders  should  not  be 
ordered  to  open  packing  cases  and  the  like  and  not  examine 
merely  the  manifests  in  order  to  furnish  evidence  which 
would  warrant  the  confiscation  of  the  goods  and  possibly 
the  ships  carrying  contraband,  should  such  be  found  on 
board.  The  Council  of  the  British  and  Foreign  Arbitra- 
tion Association  sent  a  resolution  to  the  English  Govern- 
ment and  to  that  of  Portugal  which  declared:  "This  as- 
sociation most  earnestly  and  emphatically  protests  against 
the  permission  granted  by  Portugal  to  the  Boers  of  the 
Transvaal  to  make  of  Lorenzo  Marques  an  emporium  for 
the  collection  of  arms  and  ammunition  against  Great  Britain 
with  whom  the  king  of  Portugal  is  at  peace  .  .  .  thereby 
.  .  .  enlarging  the  sphere  of  the  present  carnage  in  South 
Africa."2 

It  was  alleged  in  England  that  at  the  beginning  of  the 
war,  when  the  Portuguese  Government  believed  victory  cer- 
tain for  Great  Britain  and  only  a  matter  of  brief  hostilities, 
the  administration  at  Lorenzo  Marques  had  put  a  certain 
amount  of  restraint  upon  the  extent  to  which  the  port  might 
be  used  as  a  base  of  warlike  supplies,  but  had  later  relaxed 
this  proper  restriction.  The  only  remedy  possible  to  be 

*  London  Times,  Weekly  Ed.,  Dec.  29,  1899,  p.  821,  col.  I. 


8o  Neutral  Rights  in  the  Anglo-Boer  War.         [232 

applied  by  England  was  the  right  of  patrol  outside  the 
three  mile  limit,  but  the  detection  of  forbidden  forms  of 
commerce  was  practically  impossible.  Undoubtedly  not 
only  food  but  munitions  of  war  as  well  were  brought  in 
concealed  in  the  holds  of  merchantmen  and  by  other  de- 
vices. To  examine  the  ships  properly  at  sea  it  was  esti- 
mated would  have  required  three  weeks  or  more,  and  it  was 
declared  that  such  an  examination  alone  could  have  insured 
Great  Britain  in  her  rights,  since  the  bills  of  lading  were 
evidently  fictitious.  Recruits  came  in  on  the  ships  in  ques- 
tion as  waiters,  as  sailors,  as  passengers,  and  when  landed 
were  sent  on  to  Pretoria.  With  permanent  offices  at  the 
Hague,  Dr.  Leyds,  it  was  asserted,  was  the  recruiting  agent 
of  the  Transvaal,  and  was  successful  in  sending  out  men 
from  Germany,  Belgium,  Russia,  Sweden,  Holland,  Ireland, 
and  as  a  matter  of  fact  from  the  whole  of  Europe  as  a 
great  recruiting  station. 

It  was  this  state  of  affairs  that  impelled  the  English  Gov- 
ernment to  assume  an  attitude  toward  neutral  commerce 
which  it  was  found  difficult  to  maintain  against  other  na- 
tions whose  interests  were  involved.  The  points  in  the 
British  position  which  were  most  violently  attacked  were 
the  classification  of  foodstuffs  as  contraband  in  certain  cases, 
and  the  application  which  was  made  of  the  doctrine  of 
"  continuous  voyages,"  not  to  absolute  contraband  of  war 
or  to  goods  seeking  to  cross  the  line  of  an  established  block- 
ade, but  to  other  classes  which  are  usually  considered  free. 

There  seems  little  certainty  as  to  the  exact  circumstances 
under  which  a  belligerent  may  treat  foodstuffs  as  contra- 
band, although  it  is  generally  admitted  that  under  certain 
conditions  such  goods  may  be  so  considered.  On  the  other 
hand  doubt  is  expressed  by  many  writers  upon  international 
law  as  to  whether  it  is  ever  possible  to  treat  as  contraband 
of  war  such  articles  as  are  necessary  for  the  sustenance  of 
a  people. 

Contraband  as  is  well  known  is  generally  held  to  consist 
of  two  kinds,  first,  absolute  contraband  such  as  arms,  ma- 


233]         Contraband  of  War  and  Neutral  Ports.  81 

chinery  for  manufacturing  arms,  ammunition  and  any  ma- 
terials which  are  of  direct  application  in  naval  or  military 
armaments;  second,  conditional  contraband,  consisting  of 
articles  which  are  fit  for  but  not  necessarily  of  direct  appli- 
cation to  hostile  uses. 

The  first  class  is  always  liable  to  capture  and  confisca- 
tion, but  with  regard  to  the  second  class  no  unanimity  of 
opinion  exists.  Disputes  always  arise  as  to  what  articles, 
though  not  necessarily  of  direct  applicability  to  hostile  uses, 
may  nevertheless  be  considered  contraband  of  war.  This 
question  is  especially  difficult  of  solution  with  reference  to 
foodstuffs  when  seized  on  their  way  to  a  belligerent  in 
neutral  bottoms. 

The  case  of  seizure  which  occurred  during  the  war  in- 
volved not  only  the  question  of  foodstuffs  as  contraband  but 
brought  up  also  the  applicability  of  the  doctrine  of  "  con- 
tinuous voyages,"  where  the  article  being  conveyed  to  a 
belligerent  by  stages  were  goods  which,  except  under  un- 
usual circumstances,  have  generally  been  held  to  be  free 
from  the  taint  of  contraband  character.  Great  Britain  has 
held  that  provisions  and  liquors  fit  for  the  consumption  of 
the  enemy's  naval  or  military  forces  may  be  treated  as  con- 
traband. In  the  case  of  the  seizure  of  "  naval  or  victu- 
alling "  stores  her  rule  has  been  their  purchase  without  con- 
demnation in  a  prize  court.8 

France  in  1885  declared  rice  to  be  contraband  when 
shipped  from  the  southern  to  the  northern  ports  of  China, 
with  whom  she  was  at  war.  But  in  declaring  that  all 
cargoes  so  shipped  were  to  be  considered  as  contraband 
the  French  Government  made  a  distinction  as  to  their  in- 
tended or  probable  destination  and  use.  Great  Britain  pro- 
tested at  that  time,  but  as  no  cases  came  before  French 
prize  courts  we  have  no  way  of  judging  of  the  French 
declaration  and  its  value  as  a  precedent.  But  the  majority 
of  the  authorities  upon  the  principles  of  international  law 
admit  that  foodstuffs  which  are  destined  for  the  use  of  the 

1  Holland,  Manual  of  Naval  Prize  Law  (1888),  p.  24. 
6 


82  Neutral  Rights  in  the  Anglo-Boer  War.         [234 

enemy's  army  or  navy  may  be  declared  contraband  in 
character.  The  practice  of  the  United  States,  of  Great 
Britain  and  of  Japan  has  been  to  follow  this  rule.  Russia 
in  1904  declared  rice  and  provisions  in  general  to  be  con- 
traband. When  Great  Britain  and  the  United  States  pro- 
tested against  this  decision  the  Russian  Government  altered 
its  declaration  so  far  as  to  include  foodstuffs  as  conditional 
contraband  only.  Germany  has  held  that  articles  which  may 
serve  at  the  same  time  in  war  and  peace  are  reputed  con- 
traband if  their  destination  for  the  military  or  naval  opera- 
tions of  the  enemy  is  shown  by  the  circumstances. 

All  authorities  seem  to  agree  that  contraband  to  be  treated 
as  such  must  be  captured  in  the  course  of  direct  transit  to 
the  belligerent,  but  the  difficulty  nearly  always  arises  as  to 
what  shall  be  considered  direct  transit.  One  rule  has  been 
that  the  shipment  is  confiscable  if  bound  for  a  hostile  port, 
another  that  it  is  only  necessary  to  show  that  the  ultimate 
destination  of  the  goods  is  hostile.  The  latter  rule  was  de- 
clared to  apply  in  the  American  case  of  the  Springbok,  an 
English  merchantman  conveying  goods  in  1863  from  a  neu- 
tral port  to  a  neutral  port,  but,  it  was  alleged,  with  the  evi- 
dent intention  that  the  goods  should  reach  by  a  later  stage 
of  the  same  voyage  the  belligerent  forces  of  the  Southern 
Confederacy,  then  at  war  with  the  United  States.4  In  this 
case,  however,  the  conclusive  presumption  was  that  the 
character  of  the  goods  themselves  left  no  doubt  possible  as 
to  their  ultimate  destination.  The  guilt  of  the  vessel  was 
not  based  upon  the  ground  of  carrying  contraband  but  upon 
a  presumption  that  the  blockade  established  over  the  South- 
ern States  was  to  have  been  broken.  Both  the  ship  and  its 
cargo  were  condemned  by  the  district  court  of  southern  New 
York,  but  the  cargo  alone  was  later  considered  liable  to  con- 
demnation by  the  Supreme  Court  of  the  United  States. 
Great  Britain  at  the  time  noted  an  exception  to  the  decision, 

4  Sessional  Papers  of  the  House  of  Commons,  Correspondence 
respecting  the  Seizure  of  the  British  Vessels  "Springbok"  and 
"  Peterhof  "  by  United  States  Cruisers  in  1863,  Miscl.  No.  I  (1900), 
C.  34- 


235]          Contraband  of  War  and  Neutral  Ports.  83 

but  refused  to  take  up  claims  on  the  part  of  the  English 
owners  against  the  United  States  Government  for  indem- 
nity. Earl  Russell,  in  refusing  the  request  of  the  owners 
for  intervention  by  Great  Britain,  said  in  part:  "A  careful 
perusal  ...  of  the  judgment,  containing  the  reasons  of 
the  judge,  the  authorities  cited  by  him  in  support  of  it,  and 
the  .  .  .  evidence  invoked  .  .  .  goes  ...  to  establish  that 
the  cargo  of  the  Springbok,  containing  a  considerable  por- 
tion of  contraband,  was  never  really  and  bona  fide  destined 
for  Nassau  [the  alleged  destination],  but  was  either  destined 
merely  to  call  there,  or  to  be  immediately  transshipped  after 
its  arrival  there  without  breaking  bulk  and  without  any  pre- 
vious incorporation  into  the  common  stock  of  that  colony, 
and  to  proceed  to  its  real  port  of  destination,  being  a  block- 
aded port."  5 

This  case  is  often  cited  as  containing  an  application  of  the 
doctrine  of  "  continuous  voyages "  to  contraband  per  se. 
But  it  seems  that  the  primary  question  was  not  one  of  con- 
traband. The  guilt  of  the  ship  lay  rather  in  the  intention, 
presumed  upon  the  evidence,  that  a  breach  of  an  actual 
blockade  was  ultimately  designed.  The  Supreme  Court  in 
reviewing  the  decision  of  the  lower  court  said :  "  We  do  not 
refer  to  the  character  of  the  cargo  for  the  purpose  of  de- 
termining whether  it  was  liable  to  condemnation  as  contra- 
band, but  for  the  purpose  of  ascertaining  its  real  destina- 
tion ;  for  we  repeat  again,  contraband  or  not,  it  could  not 
be  condemned  if  really  destined  for  Nassau,  and  not  beyond, 
and,  contraband  or  not,  it  must  be  condemned  if  destined  to 
any  rebel  port,  for  all  rebel  ports  are  under  blockade."8 
In  other  words,  the  decision  was  upon  presumption  and  not 
upon  the  evidence  in  the  case ;  upon  the  presumption  that  a 
breach  of  blockade  was  premeditated  and  not  upon  the 
ground  that  the  cargo  was  contraband.  The  fact  that  the 
cargo  was  of  a  character  which  did  not  seem  likely  to  be 
incorporated  into  the  stock  in  trade  of  the  Nassau  popula- 

"  Sessional  Papers  of  the  House  of  Commons,  p.  39. 
*  Op.  cit.,  p.  45. 


84  Neutral  Rights  in  the  Anglo-Boer  War.         [236 

tion  gave  the  judges  whatever  justification  there  was  for 
the  presumption  that  the  goods  were  intended  to  be  trans- 
shipped without  breaking  bulk.  A  recent  English  writer, 
Mr.  Atherley-Jones,  who  criticises  this  decision  of  the  Su- 
preme Court  of  the  United  States  as  a  verdict  based  upon 
the  principle  of  the  expediency  of  the  moment  and  not  upon 
the  usual  rules  of  evidence,  admits  that  if  a  vessel  sails  with 
the  intention  of  violating  a  blockade  there  is  no  question 
of  the  character  of  the  port  from  which  she  sets  out  but 
insists  that  there  is  no  necessity  in  such  a  case  to  apply  the 
doctrine  of  "continuous  voyages."  If  it  can  be  proved, 
he  says,  that  she  is  going  to  a  blockaded  port,  it  does  not 
matter  whether  she  is  going  to  a  neutral  one  or  not,  but  it 
must  be  made  clear  that  she  is  going  to  a  blockaded  one.  He 
points  to  the  fact  that  suspicion  can  never  prove  this  apart 
from  the  ship's  papers,  the  admission  of  the  ship's  company 
and  the  situation  and  course  of  the  vessel.  His  view  of  the 
case  is  that  the  Supreme  Court  as  well  as  the  lower  courts  of 
the  United  States  "accepted  well  founded  surmise  as  to  a 
vessel's  destination  in  lieu  of  proof,"  and  he  adds,  "the 
danger  of  such  a  departure  needs  no  further  comment."  7 

The  first  position  taken  by  Great  Britain  to  support  her 
right  of  seizure  of  foodstuffs  bound  for  Delagoa  Bay  seems 
to  have  been  based  upon  this  departure  of  the  Supreme 
Court  of  the  United  States  in  the  case  of  the  Springbok 
in  1863.  It  was  found,  however,  that  this  basis  of  justifica- 
tion would  not  be  acceptable  to  other  Powers  generally  nor 
to  the  United  States  when  the  doctrine  of  "  continuous 
voyages "  was  given  such  an  application  as  practically  to 
include  foodstuffs  as  contraband.  Without  the  taint  of 
contraband  there  could  be  no  justification  even  upon  the 
Springbok  decision  as  a  precedent,  since  there  was  no 
blockaded  port  in  question.  In  the  seizure  of  American 
goods  which  were  being  conveyed  by  British  ships  there 
was  the  possibility  of  a  violation  of  a  municipal  regulation 
which  forbade  British  subjects  to  trade  with  the  enemy. 

T  Commerce  in  War  (1907),  p.  255. 


237]          Contraband  of  War  and  Neutral  Ports.  85 

But  the  charge  of  trading  with  the  enemy  to  gain  plausible 
ground  necessarily  carried  with  it  the  further  presumption 
that  the  ultimate  intention  was  that  the  foodstuffs  should 
reach  the  Transvaal  by  a  later  stage  of  the  same  voyage. 

With  reference  to  the  arrest  and  detention  of  German 
mail  steamers  bound  for  Delagoa  Bay,  the  English  Govern- 
ment found  the  attempt  to  substitute  possibly  well-grounded 
suspicions  for  facts  no  more  acceptable  to  third  Powers  than 
the  assumption  with  regard  to  foodstuffs  had  been,  if  the 
emphatic  statements  of  the  German  Government  indicate 
the  general  opinion  upon  the  subject  of  the  carrying  of 
analogues  of  contraband  and  unneutral  service  in  general. 

GERMAN  SEIZURES.    BUNDESRATH,  HERZOG  AND  GENERAL. 

THE  BUNDESRATH. — It  was  reported  to  the  English 
Government  by  Rear  Admiral  Sir  Robert  Harris,  on  De- 
cember 5,  1899,  that  the  German  East  African  mail  steamer 
Bundesrath  had  sailed  from  Aden  for  Delagoa  Bay.  He 
informed  his  Government  that  ammunition  was  "  suspected 
but  none  ascertained;"  that  the  Bundesrath  had  on  board 
"  twenty  Dutch  and  Germans  and  two  supposed  Boers,  three 
Germans  and  two  Australians  believed  to  be  officers,  all 
believed  to  be  intending  combatants,  although  shown  as 
civilians;  also  twenty- four  Portuguese  soldiers."8  On  the 
twenty-ninth  of  the  same  month  the  Bundesrath  was  taken 
into  Durban,  about  three  hundred  miles  from  Lorenzo 
Marques,  under  the  escort  of  the  British  cruiser  Magicienne. 
The  German  Government  demanded  the  immediate  release 
of  the  steamer  upon  the  assurance  made  by  the  Hamburg 
owners  that  she  carried  no  contraband.  Great  indignation 
was  expressed  in  Hamburg,  and  a  demand  was  made  in 
the  Chamber  of  Commerce  that  measures  be  taken  to  in- 
sure the  protection  of  German  commercial  interests.  A 
diplomatic  note  was  sent  by  Germany  protesting  against 

*  Sessional  Papers  of  the  House  of  Commons,  Correspondence 
respecting  the  Action  of  Her  Majesty's  Naval  Authorities  with  refer- 
ence to  Certain  Foreign  Vessels,  Africa  No.  i  (1900),  C.  33,  p.  I. 


86  Neutral  Rights  in  the  Anglo-Boer  War.         [238 

the  action  of  England.  Lord  Salisbury's  reply  on  the  part 
of  his  Government  was  that  the  Bundesrath  was  suspected 
of  carrying  ammunition  in  her  cargo,  and  that  it  was  known 
that  she  had  on  board  a  number  of  passengers  who  were 
believed  to  be  volunteers  for  service  with  the  Boers.  He 
added,  however,  that  no  official  details  had  been  received 
other  than  those  contained  in  the  cable  announcing  the  fact 
that  the  ship  had  been  captured.9  The  German  consul  at 
Durban  protested  against  the  ship's  being  brought  in  there 
as  prize,  and  his  Government  reiterated  its  request  that  she 
be  released  at  once  since  she  carried  no  contraband.  The 
detention  of  a  mail  ship,  it  was  asserted,  interfered  with 
public  interests  in  addition  to  the  loss  which  was  inflicted 
upon  the  owners  of  the  vessel. 

Admiral  Harris  reported  on  December  31  that  the  Bun- 
desrath had  changed  the  position  of  her  cargo  on  being 
chased,  a  fact  which  was  considered  suspicious ;  that  a  par- 
tial search  had  revealed  sugar  consigned  to  a  firm  at  De- 
lagoa  Bay,  and  railway  sleepers  and  small  trucks  consigned 
to  the  same  place.  It  was  expected  that  a  further  search 
would  reveal  arms  among  the  baggage  of  the  Germans  on 
board  who  admitted  that  they  were  going  to  the  Transvaal. 
England's  senior  naval  officer  at  Durban  was  of  the  opinion 
that  there  was  ample  ground  for  discharging  the  cargo  and 
searching  it.  The  request  was  accordingly  made  that  au- 
thority be  given  for  throwing  the  ship  into  a  prize  court, 
and  that  instructions  be  forwarded  as  to  the  proper  dis- 
posal of  the  passengers  on  board. 

Despite  the  protest  of  Germany  that  the  Bundesrath 
carried  neither  contraband  nor  volunteers  for  the  Transvaal, 
instructions  were  issued  that  a  prize  court  should  take  over 
the  ship  and  a  search  be  at  once  made  by  competent  au- 
thorities. Orders  were  given  at  the  same  time,  however, 
that  until  it  became  evident  that  the  Bundesrath  was  carry- 
ing contraband,  "  other  German  mail  steamers  should  not  be 
arrested  on  suspicion  only."10 

8  Ibid.,  pp.  2-3. 
18  Ibid.,  p.  4. 


239]          Contraband  of  War  and  Neutral  Ports.  87 

Instructions  were  also  issued  by  the  British  Government 
that  application  be  made  to  the  prize  court  for  the  release 
of  the  mails;  that  if  they  were  released  they  were  to  be 
handed  over  to  the  German  consul  and  to  be  hastened  to 
their  destination,  "  either  by  an  English  cruiser  if  available, 
or  by  a  mail  steamer,  or  otherwise."11  It  was  pointed  out 
that  the  ship  and  its  cargo,  including  the  mails,  were  in  the 
custody  of  the  court  and  except  by  the  order  of  that  tri- 
bunal should  not  be  touched.  It  was  urged,  however,  that 
every  facility  for  proceeding  to  his  destination  be  afforded 
to  any  passenger  whom  the  court  considered  innocent. 

The  German  consul  at  Durban  reported  that  no  contra- 
band had  been  found  on  the  Bttndesrath  although  a  thorough 
search  had  been  made.  The  failure  to  discover  goods  of 
a  contraband  character  apparently  rendered  the  action  of 
Great  Britain's  naval  authorities  unjustifiable.  Germany 
indeed  insisted  that  had  there  been  contraband  disclosed 
even  this  fact  would  not  have  given  England  any  right  to 
interfere  with  neutral  commerce  from  one  neutral  port  to 
another  and  insisted  that  the  task  of  preventing  the  trans- 
mission of  contraband  to  the  Transvaal  lay  with  the  Portu- 
guese Government.12  The  fact  was  also  pointed  out  that  when 
war  first  broke  out,  the  steamship  company  owning  the 
Bundesrath  had  discharged  shipments  of  a  contraband  char- 
acter at  Dar-es-Salaam  as  well  as  at  Port  Said  in  order  to 
obviate  any  possible  complication,  and  since  then  had  issued 
strict  orders  that  contraband  should  not  be  embarked. 

Great  Britain  expressed  herself  as  "  entirely  unable  to 
accede  to  ...  the  contention  that  a  neutral  vessel  was 
entitled  to  convey  without  hindrance  contraband  of  war 
to  the  enemy,  so  long  as  the  port  at  which  she  intended 
to  land  it  was  a  neutral  port."13  The  novel  suggestion  was 
made  by  Germany  that  "  the  mail  steamer  be  allowed  to  go 
on  bail  so  as  not  to  interfere  more  than  was  necessary  with 
her  voyage,"  but  the  English  representative  doubted  the 

u  Ibid.,  pp.  5-6;  Chamberlain  to  Hely-Hutchinson,  Jan.  3,  1900. 
12  Ibid.,  p.  7 ;  Lascelles  to  Salisbury,  Jan.  5,  1900. 
"  Ibid.,  p.  7;  Salisbury  to  Lascelles,  Jan.  4,  1900. 


88  Neutral  Rights  in  the  Anglo-Boer  War.         [240 

practicability  of  such  a  plan.  He  was  in  favor  of  the  sug- 
gestion if  it  could  be  adopted  under  suitable  conditions, 
but  since  the  ship  had  probably  gone  into  the  hands  of  the 
prize  court,  that  tribunal,  he  said,  would  have  to  act  inde- 
pendently. 

On  January  5  the  mails  and  the  passengers  were  re- 
leased by  order  of  the  court  and  were  taken  on  board  the 
German  warship,  Condor,  for  Delagoa  Bay.  But  not  until 
two  weeks  later  were  the  ship  and  its  cargo  released.14  The 
only  reason  assigned  by  the  court  for  the  release  was  that 
no  contraband  had  been  discovered  by  the  search. 

Since  the  three  cases  which  attracted  most  attention,  the 
Bundesrath,  the  Herzog,  and  the  General,  with  a  few  unim- 
portant exceptions  as  to  details,  were  similar  in  regard  to 
the  points  of  law  involved,  the  facts  in  the  remaining  cases 
will  be  outlined.  It  will  then  be  possible  to  discuss  the 
grounds  upon  which  Great  Britain  asserted  the  right  of  seiz- 
ure, and  the  objections  which  Germany  made  to  the  Eng- 
lish assertion. 

THE  HERZOG.  —  On  December  16,  1899,  a  cable  from  the 
commander-in-chief  of  the  Mediterranean  station  announced 
to  the  British  Foreign  Office  that  the  German  "  steam-ship  " 
Herzog  had  left  the  Suez  Canal  on  the  twelfth  for  South 
Africa  carrying  "  a  considerable  number  of  male  passengers, 
many  in  khaki,  apparently  soldiers"  although  "no  troops 
were  declared."  On  the  same  day  an  inquiry  was  made  by 
the  commander  at  the  Cape  whether  "a  number  of  passen- 
gers dressed  in  khaki  "  could  be  "  legally  removed  "  from 
the  Herzog.15  On  the  twenty-first  the  senior  naval  officer 
at  Aden  reported  that  the  Herzog  had  sailed  on  the  eight- 
eenth for  Delagoa  Bay  conveying,  "  probably  for  service  in 
the  Transvaal,  about  forty  Dutch  and  German  medical  and 
other  officers  and  nurses."16  Although  instructions  had  been 
issued  on  the  first  of  January  that  neither  the  Herzog  nor 
any  other  German  mail  steamer  should  be  arrested  "  on  sus- 


p.  22;  Hely-Hutchinson  to  Chamberlain,  Jan.  18,  1900. 
"  Ibid.,  p.  i  ;  Admiralty  to  Foreign  Office,  Nos.  i  and  2. 
18  Ibid.,  pp.  2,  4,  ii. 


241]          Contraband  of  War  and  Neutral  Ports.  89 

picion  only"  until  it  became  evident  that  the  Bundcsrath, 
which  was  then  being  searched,  really  carried  contraband, 
the  Herzog  was  taken  into  Durban  as  prize  on  the  sixth 
by  the  British  ship  Thetis. 

The  consul  at  Durban  as  well  as  the  commander  of  the 
German  man-of-war  Condor  protested  in  the  name  of  their 
Government  against  the  seizure  of  the  Herzog.  They  urged 
that  the  vessel  be  allowed  to  proceed  since  her  captain  had 
given  the  assurance  that  there  were  no  contraband  goods  on 
board;  that  the  only  suspected  articles  were  the  mails,  and 
certain  small  iron  rails  and  railway  sleepers  which  were 
destined  for  the  neutral  port  of  Delagoa  Bay.  On  board 
the  Herzog,  however,  there  were  three  Red  Cross  expedi- 
tions, one  of  which  had  no  official  connection  with  the  legiti- 
mate Red  Cross  societies.  It  had  no  official  character  but 
had  been  organized  by  a  committee,  the  "  Hilfs  Ausshuss 
fur  Transvaal  in  Antwerp."17  The  other  Red  Cross  ex- 
peditions were  legitimate,  one  being  German  and  the  other 
Dutch. 

On  the  seventh  instructions  were  issued  that  the  Herzog 
be  released  at  once,  unless  guns  or  ammunition  were  re- 
vealed by  a  summary  search.  But  on  the  following  day  the 
order  was  added  that  proceedings  might  be  discontinued 
and  the  ship  released  unless  "  provisions  on  board  are  des- 
tined for  the  enemy's  Government  or  agents,  and  are  also 
for  the  supply  of  troops  or  are  especially  adapted  for  use 
as  rations  for  troops."18  On  the  ninth  the  Herzog  was 
released,  arrangements  having  been  made  two  days  before 
for  the  passage  of  one  of  the  passengers,  the  Portuguese 
Governor  of  Zambesi,  to  Delagoa  Bay  by  the  Harlech 
Castle. 

THE  GENERAL. — On  the  fourth  of  January  the  senior 
naval  officer  at  Aden  had  reported  to  the  English  admiralty 
that  the  German  vessel  General,  another  East  African  mail 
steamer,  was  under  detention  there  upon  strong  suspicion 

"Ibid.,  p.  16. 
"Ibid.,  pp.  14,  16. 


90  Neutral  Rights  in  the  Anglo-Boer  War.         [242 

and  was  being  searched.19  The  German  Government  at  once 
entered  a  strong  protest  and  demanded  in  rather  brusque 
terms  "that  orders  be  given  for  the  immediate  release  of 
the  steamer  and  her  cargo,  for  that  portion  of  her  cargo 
which  has  already  been  landed  to  be  taken  on  board  again, 
and  for  no  hindrances  to  be  placed  in  the  way  of  the  ship 
continuing  her  voyage  to  the  places  mentioned  in  her  itin- 
erary." Count  Hatzfelt,  the  German  representative  in  Lon- 
don, continued:  "I  am  further  instructed  to  request  your 
Excellency  [the  Marquis  of  Salisbury]  to  cause  explicit  in- 
structions to  be  sent  to  the  Commanders  of  British  ships 
in  African  waters  to  respect  the  rules  of  international  law, 
and  to  place  no  further  impediments  in  the  way  of  the  trade 
between  neutrals."20 

To  the  form  and  imputations  of  this  request  the  British 
Government  took  exception,  and  the  situation  appeared 
ominous  for  a  time.  Instructions  had  been  issued,  however, 
that  unless  the  General  disclosed  contraband  after  a  sum- 
mary search  it  was  undesirable  to  detain  the  ship  since  she 
carried  the  mails.  The  report  of  the  naval  officer  at  Aden 
disclosed  the  fact  that  he  had  boarded  and  detained  the 
ship  at  that  place.  The  ground  for  his  action  was  that 
he  had  been  informed  that  a  number  of  suspicious  articles 
were  on  board  for  Delagoa  Bay,  including  boxes  of  am- 
munition stowed  in  the  main  hold,  buried  under  reserve  coal. 
An  inspection  of  the  manifest  had  shown  several  cases  of 
rifle  ammunition  for  Mauser,  Mannlicher  and  sporting  rifles 
consigned  to  Mombasa,  but  this  consignment  was  believed 
to  be  bona  fide.  Other  suspected  articles  on  the  manifest 
were  wagon  axles  and  chemicals  and  at  the  bottom  of  the 
hold  was  a  consignment  of  food  for  Delagoa  Bay,  with  boil- 
ers and  heavy  machinery  stowed  on  top  of  the  reserve  coal. 
The  General  carried  besides  a  number  of  Flemish  and  Ger- 
man passengers  for  Delagoa  Bay,  in  plain  clothes  but  of 
"  military  appearance,"  some  of  whom  were  believed  to  be 

19  Ibid.,  p.  6. 

20  Ibid.,  p.  8. 


243]          Contraband  of  War  and  Neutral  Ports.  91 

trained  artillerymen.  It  was  suggested  that  this  last  doubt 
could  be  cleared  up  only  by  a  search  of  the  private  baggage 
of  the  persons  suspected,  but  it  was  not  considered  by  the 
British  Foreign  Office  that  there  was  "  sufficient  evidence 
as  to  their  destination  to  justify  further  action  on  the  part 
of  the  officers  conducting  the  search."21 

On  the  seventh  the  General  was  released,  but  was  not 
able  to  sail  until  the  tenth,  a  delay  due  to  the  labor  of  re- 
stowing  her  cargo,  which  was  done  as  quickly  as  possible. 
The  crew  of  the  English  ship  Marathon,  assisted  by  one 
hundred  coolies,  having  worked  day  and  night  after  the 
arrival  of  the  ship  on  the  fourth,  completed  the  search  on 
the  sixth  but  were  unable  to  complete  the  restowal  until  the 
morning  of  the  tenth. 

THE  JUDICIAL  ASPECTS  OF  THE  SEIZURES. 

In  the  discussion  which  occurred  during  the  detention, 
and  which  was  continued  after  the  release  of  the  three  Ger- 
man ships,  the  assertions  made  by  the  British  and  German 
Governments  brought  out  the  fact  that  English  practice  is 
often  opposed  to  Continental  opinion  in  questions  of  inter- 
national law. 

On  the  fourth  of  January  the  German  Ambassador  in 
London  had  declared  that  his  Government,  "  after  care- 
fully examining  the  matter"  of  the  seizure  of  the  Bundes- 
rath,  and  considering  the  judicial  aspects  of  the  case,  was 
"  of  the  opinion  that  proceedings  before  a  Prize  Court  were 
not  justified."22  This  view  of  the  case,  he  declared,  was 
based  on  the  consideration  that  "  proceedings  before  a  Prize 
Court  are  only  justified  where  the  presence  of  contraband 
of  war  is  proved,  and  that,  whatever  may  have  been  on 
board  the  Bimdesrath,  there  could  have  been  no  contraband 
of  war,  since,  according  to  recognieed  principles  of  inter- 
national law,  there  cannot  be  contraband  of  war  in  trade 
between  neutral  ports." 

21  Ibid.,  p.  22;  see  also  pp.  10,  17,  21. 

12  Sessional  Papers,  Africa,  No.  I  (1900),  C.  33,  p.  6;  Hatzfelt  to 
Salisbury,  Jan.  4,  1900. 


92  Neutral  Rights  in  the  Anglo-Boer  War.         [244 

He  asserted  that  this  view  was  taken  by  the  English  Gov- 
ernment in  the  case  of  the  Springbok  in  1863  as  opposed  to 
the  decision  of  the  Supreme  Court  of  the  United  States 
sitting  as  a  prize  court  on  an  appeal  from  the  lower  dis- 
trict court  of  the  State  of  New  York.23  The  protest  of 
the  British  Government  against  the  decision  of  the  United 
States  court  as  contravening  these  recognized  principles, 
he  said,  was  put  on  record  in  the  Manual  of  Naval  Prize 
Law  published  by  the  English  Admiralty  in  1866,  three  years 
after  the  original  protest.  The  passage  cited  from  the 
manual  read :  "  A  vessel's  destination  should  be  considered 
neutral,  if  both  the  port  to  which  she  is  bound  and  every 
intermediate  port  at  which  she  is  to  call  in  the  course  of 
her  voyage  be  neutral,"  and  "  the  destination  of  the  vessel 
is  conclusive  as  to  the  destination  of  the  goods  on  board." 
In  view  of  this  declaration  on  the  part  of  Great  Britain 
toward  neutral  commerce  Count  Hatzfeldt  contended  that  his 
Government  was  "  fully  justified  in  claiming  the  release  of 
the  Bundesrath  without  investigation  by  a  Prize  Court,  and 
that  all  the  more  because,  since  the  ship  is  a  mail-steamer 
with  a  fixed  itinerary,  she  could  not  discharge  her  cargo 
at  any  other  port  than  the  neutral  port  of  destination."24 

In  his  reply  to  the  German  note  Lord  Salisbury  thought  it 
desirable,  before  examining  the  doctrine  put  -forward,  to 
remove  certain  "  errors  of  fact  in  regard  to  the  authorities  " 
cited.  He  emphatically  declared  that  the  British  Govern- 

23  This  case,  it  will  be  remembered,  was  not  decided  on  the  ground 
of  the  contraband  character  of  the  goods  in  the  cargo  but  because 
of  the  presumption  that  the  ultimate  intention  of  the  ship  was 
to  break  the  blockade  established  over  the  Southern  States.  This 
well  founded  suspicion,  based  upon  the  character  of  the  cargo  as 
tending  to  show  that  it  could  be  intended  only  for  the  forces  of 
the  Southern  Confederacy,  led  to  the  conclusion  that  a  breach  of 
blockade  was  premeditated.  This  presumption  no  doubt  was  cor- 
rect and  in  this  particular  case  the  decision  of  the  court  was  prob- 
ably justified,  but  the  course  of  reasoning  by  which  the  conclusion 
was  reached  was  generally  considered  a  dangerous  innovation  in 
international  relations.  It  has  been  recently  again  asserted  that 
the  decision  was  not  based  upon  the  accepted  rules  of  evidence. 
Supra  p.  24.  For  a  clear  statement  of  the  latter  view,  see  Atherley- 
Jones,  Commerce  in  War,  p.  255. 

'*  Sessional  Papers,  Africa,  No.  I  (1900),  C.  33,  p.  6;  Hatzfeldt 
to  Salisbury,  Jan.  4,  1900. 


245]          Contraband  of  War  and  Neutral  Ports.  93 

ment  had  not  in  1863  "  raised  any  claim  or  contention 
against  the  Judgment  of  the  United  States'  Prize  Court  in 
the  case  of  the  Springbok."  And  he  continued :  "  On  the 
first  seizure  of  that  vessel,  and  on  an  ex  parte  and  imperfect 
statement  of  the  fact  by  the  owners,  Earl  Russell,  then  Sec- 
retary of  State  for  Foreign  Affairs,  informed  Her  Majesty's 
Minister  at  Washington  that  there  did  not  appear  to  be  any 
justification  for  the  seizure  of  the  vessel  and  her  cargo,  that 
the  supposed  reason,  namely,  that  there  were  articles  in  the 
manifest  not  accounted  for  by  the  captain,  certainly  did  not 
warrant  the  seizure,  more  especially  as  the  destination  of 
the  vessel  appeared  to  have  been  bona  fide  neutral,  but  that, 
inasmuch  as  it  was  probable  that  the  vessel  had  by  that  time 
been  carried  before  a  Prize  Court  of  the  United  States  for 
adjudication,  and  that  the  adjudication  might  shortly  follow, 
if  it  had  not  already  taken  place,  the  only  instruction  that 
he  could  at  present  give  to  Lord  Lyons  was  to  watch  the 
proceedings  and  the  Judgment  of  the  Court,  and  eventually 
transmit  full  information  as  to  the  course  of  the  trial  and  its 
results."  He  asserted  that  the  real  contention  advanced  in 
the  plea  of  the  owners  for  the  intervention  of  the  British 
Government  had  been  that  "the  goods  [on  board  the 
Springbok]  were,  in  fact,  bona  fide  consigned  to  a  neutral 
at  Nassau;"  but  that  this  plea  had  been  refused  by  the 
British  Government  without  "  any  diplomatic  protest  or  ... 
any  objection  against  the  decision  .  .  .  nor  did  they  ever 
express  any  dissent  from  that  decision  on  the  grounds  on 
which  it  was  based."25 

This  assertion  is  fairly  based  upon  the  reply  of  the  Eng- 
lish Government  to  the  owners  on  February  20,  1864.  Earl 
Russell  had  expressly  declared  that  his  government  could 
not  interfere  officially.  "  On  the  contrary,"  he  said,  "  a 
careful  perusal  of  the  elaborate  and  able  Judgment,  contain- 
ing the  reasons  of  the  Judge,  the  authorities  cited  by  him 
in  support  of  it,  and  the  important  evidence  properly  in- 
voked from  the  cases  of  the  Stephen  Hart  and  Gertrude 

"Ibid.,  p.   18;   Salisbury  to  Lascelles,  Jan.   10,  1900. 


94  Neutral  Rights  in  the  Anglo-Boer  War.         [246 

(which  her  majesty's  government  have  now  seen  for  the 
first  time)  in  which  the  same  parties  were  concerned,"  had 
convinced  his  Government  that  the  decision  was  justifiable 
under  the  circumstances.26  The  fact  was  pointed  out  that  the 
evidence  had  gone  "  so  far  to  establish  that  the  cargo  of  the 
Springbok,  containing  a  considerable  portion  of  contraband, 
was  never  really  and  bona  fide  destined  for  Nassau,  but  was 
either  destined  merely  to  call  there  or  to  be  immediately 
transhipped  after  its  arrival  there  without  breaking  bulk 
and  without  any  previous  incorporation  into  the  common 
stock  of  that  Colony,  and  then  to  proceed  to  its  real  desti- 
nation, being  a  blockaded  port"21  The  " complicity  of  the 
owners  of  the  ship,  with  the  design  of  the  owners  of  the 
cargo,"  was  "  so  probable  on  the  evidence  "  that,  in  the  opin- 
ion of  the  law  advisers  of  the  Crown,  "  there  would  be  great 
difficulty  in  contending  that  this  ship  and  cargo  had  not 
been  rightly  condemned."  The  only  recourse  of  the  owners 
was  consequently  the  "  usual  and  proper  remedy  of  an  ap- 
peal "  before  the  United  States  Courts. 

The  next  point  that  Count  Hatzfeldt  made  was  not  so 
squarely  met  by  Lord  Salisbury,  namely,  that  the  manual 
of  the  English  Admiralty  of  1866  expressly  declared :  "  A 
vessel's  destination  shall  be  considered  neutral,  if  both  the 
point  to  which  she  is  bound  and  every  intermediate  port  at 
which  she  is  to  call  in  the  course  of  her  voyage  be  neutral." 
And  again,  "  The  destination  is  conclusive  as  to  the  desti- 
nation of  the  goods  on  board."  Count  Hatzfeldt  contended 
that  upon  this  principle,  admitted  by  Great  Britain  herself, 
Germany  was  fully  justified  in  claiming  the  release  of  the 
ship  without  adjudication  since  she  was  a  mail-steamer  with 
a  fixed  itinerary  and  consequently  could  not  discharge  her 
cargo  at  any  other  port  than  the  neutral  port  of  destination.28 

The  only  reply  that  Lord  Salisbury  could  make  was  that 
the  manual  cited  was  only  a  general  statement  of  the  prin- 

26  Sessional  Papers,  Miscl.,  No.  i  (1900),  C.  34,  pp.  39-40;  Russell 
to  Lyons,  Feb.  20,  1864. 
"Ibid.     Italics  our  own. 
28  Sessional  Papers,  Africa,  No.  i    (1900),  C.  33,  p.  6. 


247]          Contraband  of  War  and  Neutral  Ports.  95 

ciples  by  which  British  officers  were  to  be  guided  in  the 
exercise  of  their  duties,  but  that  it  had  never  been  asserted 
and  could  not  be  admitted  to  be  an  exhaustive  or  authorita- 
tive statement  of  the  views  of  the  British  Government.  He 
further  contended  that  the  preface  stated  that  it  did  not 
treat  of  questions  which  would  ultimately  have  to  be  settled 
by  English  prize  courts.  The  assertion  was  then  made  that 
while  the  directions  of  the  manual  were  sufficient  for  prac- 
tical purposes  in  the  case  of  wars  such  as  had  been  waged 
by  Great  Britain  in  the  past,  they  were  quite  inapplicable  to 
the  case  which  had  arisen  of  war  with  an  inland  State  whose 
only  communication  with  the  sea  was  over  a  few  miles  of 
railway  to  a  neutral  port.  The  opinion  of  the  British  Gov- 
ernment was  that  the  passage  cited  to  the  effect  "  that  the 
destination  of  the  vessel  is  conclusive  as  to  the  destination 
of  the  goods  on  board "  had  no  application.  "  It  cannot 
apply  to  contraband  of  war  on  board  a  neutral  vessel  if 
such  contraband  was  at  the  time  of  seiz»ire  consigned  or 
intended  to  be  delivered  to  an  agent  of  the  enemy  at  a  neu- 
tral port,  or,  in  fact,  destined  for  the  enemy's  country."20 

Lord  Salisbury  then  cited  Bluntschli  as  stating  what  in 
the  opinion  of  the  British  Government  was  the  correct  view 
in  regard  to  goods  captured  under  such  circumstances :  "  If 
the  ships  or  goods  are  sent  to  the  destination  of  a  neutral 
port  only  the  better  to  come  to  the  aid  of  the  enemy,  there 
will  be  contraband  of  war  and  confiscation  will  be  justi- 
fied."30 And,  basing  his  argument  upon  this  authority,  he 
insisted  that  his  Government  could  not  admit  that  there  was 
sufficient  reason  for  ordering  the  release  of  the  Bundesrath 

39  Ibid.,  pp.  18-19.     Salisbury  to  Lascelles,  Jan.  10,  1900. 

** "  Si  les  navires  ou  marchandises  ne  spnt  expedies  a  destina- 
tion d'un  port  neutre  que  pour  mieux  venir  en  aide  a  1'ennemi,  il 
y  aura  contrebande  de  guerre,  et  la  confiscation  sera  justifiee."  Droit 
Int.  Codifie,  French  translation  by  Lardy,  1880,  3d  Ed.,  §813.  One 
of  the  two  cases  cited  in  sunnort  of  this  opinion  is  that  of  the 
Springbok,  but  in  §  835,  Rem.  5,  the  following:  statement  is  made : 
"  Une  theorie  fort  dangereuse  a  etc  formule  par  le  juge  Chase: 
'  Lorsqu'un  port  bloque  est  le  lieu  de  destination  du  navire,  le  neutre 
doit  etre  condamne,  meme  lorsqu'il  se  rend  prealablement  dans  un 
port  neutre,  peu  importe  qu'il  ait  ou  non  de  la  contrebande  de 
guerre  a  bord.' " 


96  Neutral  Rights  in  the  Anglo-Boer  War.         [248 

"  without  examination  by  the  Prize  Court  as  to  whether  she 
was  carrying  contraband  of  war  belonging  to,  or  destined 
for,  the  South  African  Republic."  It  was  admitted,  how- 
ever, that  the  British  Government  fully  recognized  how  de- 
sirable it  was  that  the  examination  should  be  carried  through 
at  the  earliest  possible  moment,  and  that  "all  proper  con- 
sideration should  be  shown  for  the  owners  and  for  innocent 
passengers  and  all  merchandise  on  board  of  her."31  It  was 
intimated  that  explicit  instructions  had  been  issued  for  this 
purpose  and  that  arrangements  had  been  made  for  the 
speedy  transmission  of  the  mails. 

The  German  Government,  agreeing  for  the  moment  to 
put  to  one  side  the  disputed  question  of  trade  between  neu- 
tral ports  in  general,  nevertheless  insisted  that  since  a  pre- 
liminary search  of  the  Bundesrath  had  not  disclosed  contra- 
band of  war  on  board  there  was  no  justification  for  deliv- 
ering the  vessel  to  a  prize  court.  The  suggestion  was  made 
that  future  difficulty  might  be  avoided  by  an  agreement 
upon  a  parallel  of  latitude  down  to  which  all  ships  should 
be  exempt  from  search.  And  although  it  was  not  found 
possible  to  reach  an  exact  agreement  upon  this  point,  orders 
were  issued  by  Great  Britain  that  the  right  of  search  should 
not  in  future  be  exercised  at  Aden  or  at  any  place  at  an 
equal  distance  from  the  seat  of  war  and  that  no  mail 
steamers  should  be  arrested  on  suspicion  alone.  Only  mail 
steamers  of  subsidized  lines  were  to  be  included,  but  in  all 
cases  of  steamers  carrying  the  mails  the  right  of  search  was 
to  be  exercised  with  all  possible  consideration  and  only  re- 
sorted to  when  the  circumstances  were  clearly  such  as  to 
justify  the  gravest  suspicion.32 

It  is  interesting  to  note  in  the  positions  taken  by  the  Ger- 
man and  English  Governments  with  regard  to  the  theory 
of  ultimate  destination  and  continuous  voyages  a  wide  diver- 
gence of  opinion.  The  British  Government  apparently 
based  its  contention  upon  the  decision  of  the  United  States 

31  Sessional  Papers,  Africa,  No.  I  (1900),  C.  33,  p.  19;  Salisbury  to 
Lascelles,  Jan.  10,  1900. 

32  Ibid.,  pp.  19-22. 


249]         Contraband  of  War  and  Neutral  Ports.  97 

Supreme  Court  in  the  case  of  the  Springbok  in  1863,  namely, 
that  a  continuous  voyage  may  be  presumed  from  an  in- 
tended ultimate  hostile  destination  in  the  case  of  a  breach 
of  blockade,  the  contraband  character  of  the  goods  only 
tending  to  show  the  ultimate  hostile  intention  of  the  ship. 
But  the  English  contention  went  further  than  this  and  at- 
tempted to  apply  the  doctrine  to  contraband  goods  ulti- 
mately intended  for  the  enemy  or  the  enemy's  country  by 
way  of  a  neutral  port  which,  however,  was  not  and  could 
not  be  blockaded.  The  German  Government  contended  on 
the  other  hand  that  this  position  was  not  tenable  and  appar- 
ently repudiated  the  extension  of  the  continuous  voyage  doc- 
trine as  attempted  by  England. 

In  the  end  the  immediate  dispute  was  settled  upon  the 
following  principles:  (i)  The  British  Government  admitted, 
in  principle  at  any  rate,  the  obligation  to  make  compensa- 
tion for  the  loss  incurred  by  the  owners  of  the  ships  which 
had  been  detained,  and  expressed  a  readiness  to  arbitrate 
claims  which  could  not  be  arranged  by  other  methods.  (2) 
Instructions  were  issued  that  vessels  should  not  be  stopped 
and  searched  at  Aden  or  at  any  point  equally  or  more  dis- 
tant from  the  seat  of  war.  (3)  It  was  agreed  provisionally, 
till  another  arrangement  should  be  reached,  that  German 
mail  steamers  should  not  be  searched  in  future  on  suspicion 
only.  This  agreement  was  obviously  a  mere  arrangement 
dictated  by  the  necessity  of  the  moment,  and  was  not  such 
as  would  settle  the  question  of  the  extent  to  which  the  doc- 
trine of  continuous  voyages  might  be  extended  in  dealing 
with  contraband  trade  or  with  alleged  traffic  of  this  char- 
acter. 

Count  Von  Billow,  the  German  Chancellor,  speaking 
before  the  Reichstag  with  reference  to  the  seizures  of  the 
German  mail  steamers  said :  "  We  strove  from  the  outset 
to  induce  the  English  Government  in  dealing  with  neutral 
vessels  consigned  to  Delagoa  Bay,  to  adhere  to  that  theory 
of  international  law  which  guarantees  the  greatest  security 
to  commerce  and  industry,  and  which  finds  expression  in 


98  Neutral  Rights  in  the  Anglo-Boer  War.         [250 

the  principle  that  for  ships  consigned  from  neutral  states 
to  a  neutral  port,  the  notion  of  contraband  of  war  simply 
does  not  exist.  To  this  the  English  Government  demurred. 
We  have  reserved  to  ourselves  the  right  of  raising  this  ques- 
tion in  the  future,  in  the  first  place  because  it  was  essential 
to  us  to  arrive  at  an  expeditious  solution  of  the  pending 
difficulty,  and  secondly,  because,  in  point  of  fact,  the  prin- 
ciple here  set  up  by  us  has  not  met  with  universal  recogni- 
tion in  theory  and  practice."33 

Summing  up  what  in  the  opinion  of  the  German  Govern- 
ment corresponded  most  closely  with  the  general  opinion 
of  the  civilized  world,  the  Chancellor  then  declared :  "  We 
recognize  the  rights  which  the  Law  of  Nations  actually  con- 
cedes to  belligerents  with  regard  to  neutral  vessels  and  neu- 
tral trade  and  traffic.  We  do  not  ignore  the  duties  imposed 
by  a  state  of  war  upon  the  ship  owners,  merchants,  and  ves- 
sels of  a  neutral  state,  but  we  require  of  the  belligerents  that 
they  shall  not  extend  the  powers  they  possess  in  this  respect 
beyond  the  strict  necessities  of  war.  We  demand  of  the 
belligerents  that  they  shall  respect  the  inalienable  rights  of 
legitimate  neutral  commerce,  and  we  require  above  all 
things  that  the  right  of  search  and  of  the  eventual  capture 
of  neutral  ships  and  goods  shall  be  exercised  by  the  bellig- 
erents in  a  manner  conformable  to  the  maintenance  of  neu- 
tral commerce,  and  of  the  relations  of  neutrality  existing 
between  friendly  and  civilized  nations."34 

This  doctrine,  namely,  that  "  for  ships  consigned  from 
neutral  states  to  a  neutral  port,  the  notion  of  contraband 
simply  does  not  exist,"  clearly  defined  the  contention  of 
Great  Britain  that  contraband  which  "  at  the  time  of  seiz- 
ure" was  "consigned  or  intended  to  be  delivered  to  an 
agent  of  the  enemy  at  a  neutral  port,  or,  in  fact,  destined 
for  the  enemy's  country,"  is  liable  to  seizure  and  that  both 
ship  and  cargo  may  be  confiscated.35  It  also  denied  the 

33  Sessional  Papers,  Africa,  No.   i    (1900),  C.  33;  p.  25,  Jan.  19, 
1900.      Italics  our  own. 
"Ibid.,  p.  25. 
Ibid.,  p.  19;  Salisbury  to  Lascelles,  Jan.  10,  1900. 


251]          Contraband  of  War  and  Neutral  Ports.  99 

English  contention  that  "  provisions  on  board  .  .  .  destined 
for  the  enemy's  Government  or  agents,  and  .  .  .  also  for 
the  supply  of  troops  or  ...  especially  adapted  for  use  as 
rations  for  troops  "  may  be  seized  as  contraband.36 

Count  Von  Billow  summarized  the  action  of  the  German 
Government  by  saying :  "  We  demanded  in  the  first  place 
the  release  of  the  steamers.  ...  In  the  second  place  we 
demanded  the  payment  of  compensation  for  the  unjustified 
detention  of  our  ships  and  for  the  losses  incurred  by  the 
German  subjects  whose  interests  were  involved.  .  .  .  Thirdly, 
we  drew  attention  to  the  necessity  for  issuing  instructions 
to  the  British  Naval  Commanders  to  molest  no  German 
merchantmen  in  places  not  in  the  vicinity  of  the  seat  of 
war,  or  at  any  rate,  in  places  north  of  Aden.  .  .  .  Fourthly, 
we  stated  it  to  be  highly  desirable  that  the  English  Gov- 
ernment should  instruct  their  Commanders  not  to  arrest 
steamers  flying  the  German  mail  flag.  .  .  .  Fifthly,  we  pro- 
posed that  all  points  in  dispute  should  be  submitted  to  arbi- 
tration. .  .  .  Lastly,  the  English  Government  have  given 
expression  to  their  regret  for  what  has  occurred.  We  cher- 
ish the  hope  that  such  regrettable  incidents  will  not  be  re- 
peated. We  trust  that  the  English  naval  authorities  will 
not  again  proceed  without  sufficient  cause,  in  an  unfriendly 
and  precipitate  manner  against  our  ships."37 

The  Chancellor  at  the  same  time  set  forth  certain  general 
propositions  as  a  tentative  system  of  law  to  be  operative  in 
practice,  a  disregard  of  which  in  the  opinion  of  the  German 
Government  would  constitute  a  breach  of  international 
treaties  and  customs: 

(i)  "Neutral  merchant  ships  on  the  high  seas  or  in  the 
territorial  waters  of  the  belligerent  Powers  .  .  .  are  sub- 
ject to  the  right  of  visit  by  the  warships  of  the  belligerent 
parties."  It  was  pointed  out  that  this  was  apart  from  the 
right  of  convoy,  a  question  which  did  not  arise  in  the  cases 
under  discussion.  The  proposal  was  not  intended  to  apply 
to  waters  which  were  too  remote  from  the  seat  of  war  and 
a  special  agreement  was  advocated  for  mail  ships. 

M  Ibid.,  p.  16;  Admiralty  to  Harris,  Jan.  8,  1900. 
"  Speech  in  Reichstag,  Jan.   19,   1900. 


IOO          Neutral  Rights  in  the  Anglo-Boer  War.         [252 

"  (2)  The  right  of  visit  is  to  be  exercised  with  as  much 
consideration  as  possible  and  without  undue  molestation. 

"  (3)  The  procedure  in  visiting  a  vessel  consists  of  two 
or  three  acts  according  to  the  circumstances  of  each  case; 
stopping  the  ship,  examining  her  papers,  and  searching  her. 
The  two  first  acts  may  be  undertaken  at  any  time,  and 
without  preliminary  proceeding.  If  the  neutral  vessel  re- 
sists the  order  to  stop,  or  if  irregularities  are  discovered  in 
her  papers,  or  if  the  presence  of  contraband  is  revealed, 
then  the  belligerent  vessel  may  capture  the  neutral,  in  order 
that  the  case  may  be  investigated  and  decided  upon  by  a 
competent  Prize  Court. 

"(4)  By  the  term  'contraband  of  war'  only  such  articles 
or  persons  are  to  be  understood  as  are  suited  for  war  and 
at  the  same  time  are  destined  for  one  of  the  belligerents." 
"The  class  of  articles  to  be  included  in  this  definition,"  it 
was  intimated,  "  is  a  matter  of  dispute,  and  with  the  excep- 
tion of  arms  and  ammunition,  is  determined,  as  a  rule,  with 
reference  to  the  special  circumstances  of  each  case  unless 
one  of  the  belligerents  has  expressly  notified  neutrals  in  a 
regular  manner  what  articles  it  intends  to  treat  as  contra- 
band and  had  met  with  no  opposition. 

"(5)  Discovered  contraband  is  liable  to  confiscation; 
whether  with  or  without  compensation  depends  upon  the 
circumstances  of  each  case. 

"(6)  If  the  seizure  of  the  vessel  was  not  justified  the  bel- 
ligerent state  is  bound  to  order  the  immediate  release  of  the 
ship  and  cargo  and  to  pay  full  compensation." 

It  was  the  view  of  the  German  Government  according  to 
these  principles,  and  in  view  of  the  recognized  practice  of 
nations,  that  it  would  not  have  been  possible  to  lodge  a  pro- 
test against  the  stopping  on  the  high  seas  of  the  three  Ger- 
man steamers  or  to  protest  against  the  examination  of  their 
papers.  But  by  the  same  standard,  it  was  contended  that 
the  act  of  seizing  and  conveying  to  Durban  the  Bundesrath 
and  the  Herzog,  and  the  act  of  discharging  the  cargoes  of 
the  Bundesrath  and  General,  were  both  undertaken  upon 


2 53]         Contraband  of  War  and  Neutral  Ports.  101 

insufficiently  founded  suspicion  and  did  not  appear  to  have 
been  justified. 

The  end  of  the  discussion  between  Great  Britain  and 
Germany  left  the  somewhat  uncertain  doctrine  of  contin- 
uous voyages  still  unsettled.  As  applied  in  1863  distinctly 
to  a  breach  of  blockade  it  was  generally  considered  an  inno- 
vation. As  applied,  or  attempted  to  be  applied,  by  Great 
Britain  in  1900  to  trade  between  neutral  ports  at  a  time 
when  no  blockade  existed  or  was  in  fact  possible,  it  failed 
to  receive  the  acquiescence  of  other  nations  who  were  inter- 
ested. The  discussion,  however,  rendered  apparent  a  clear 
line  of  cleavage  between  English  practice  and  Continental 
opinion. 

Mr.  Lawrence  characterizes  as  "  crude  "  the  doctrine  of 
the  German  Chancellor,  that  neutral  ships  plying  between 
neutral  ports  are  not  liable  to  interference;  that,  in  order 
for  the  ship  to  be  legitimately  seized,  there  must  be  contra- 
band on  board,  that  is,  goods  bound  for  a  belligerent  desti- 
nation, and  that  this  could  not  occur  where  the  destination 
was  a  neutral  port  and  the  point  of  departure  a  neutral  port. 
He  declares  that  if  this  doctrine  were  accepted  the  offense 
of  carrying  contraband  "  might  be  expunged  from  the  inter- 
national code ;"  that  "  nothing  would  be  easier  for  neutrals 
than  to  supply  a  belligerent  with  all  he  needed  for  the  prose- 
cution of  his  war."38  He  points  out  the  danger  of  the  ac- 
ceptance on  the  part  of  the  Powers  of  such  a  doctrine  by 
citing  the  hypothetical  case  of  France  engaged  in  war,  and 
asserts  that  under  such  circumstances  even  arms  and  ammu- 
nition might  be  poured  into  the  neutral  port  of  Antwerp  and 
carried  by  land  to  the  French  arsenals.  If  Germany  should 
be  at  war,  munitions  of  war  might  be  run  in  with  practically 
no  hindrance  through  the  neutral  harbors  of  Jutland.  If 
Italy  were  at  war,  Nice  or  Trieste  might  be  used  in  the 
same  manner  for  the  Italian  Government  to  secure  arms 
and  ammunition. 

Possibly  Mr.  Lawrence  does  not  do  full  justice  to  the 

M  Principles  of  Int.  Law,  3d  Ed.,  p.  670. 


IO2          Neutral  Rights  in  the  Anglo-Boer  War.         [254 

points  taken  by  the  German  Government  as  enunciated  in 
the  speech  of  Count  Von  Biilow,  although  he  clearly  indi- 
cates what  he  thinks  the  general  tendency  of  the  proposed 
German  system  of  law  would  be.  It  would  seem  that  he 
does  not  give  a  clear  statement  of  the  German  doctrine. 
When  he  asserts  that  "  Count  Von  Biilow  committed  him- 
self to  the  crude  doctrine  that  neutral  ships  plying  between 
neutral  ports  would  not  be  liable  to  interference,"  the  infer- 
ence is  not  a  necessary  result  of  the  German  position.  Nor 
does  it  necessarily  follow  according  to  the  German  standard 
that,  "  to  constitute  the  offense  of  carrying  contraband  a 
belligerent  destination  "  is  "  essential,  and  therefore  there  " 
can  "  be  no  contraband  when  the  voyage  "  is  "  from  neutral 
port  to  neutral  port."39  Mr.  Lawrence  possibly  has  reference 
only  to  the  position  taken  arguendo  by  the  German  Gov- 
ernment during  the  correspondence  immediately  following 
the  seizure  of  the  German  ships  and  not  to  the  general 
rules  formulated  by  the  German  Chancellor  on  January  19, 
1900,  in  his  speech  before  the  Reichstag.40  There  is  no 
indication  that  Mr.  Lawrence  had  this  speech  before  him 
when  he  passed  judgment  upon  the  German  doctrine, 
although  the  preface  to  the  third  edition  of  his  Principles 
of  International  Law  is  dated  August  i,  1900. 

It  is  possibly  true  that  the  German  rules  were  advanced 
because  of  their  expediency  in  view  of  the  geographical 
position  of  Germany.  But  the  English  writer  apparently 
admits  a  similar  motive  in  opposing  the  proposed  German 
system,  when  he  says,  "  Great  Britain  is  the  only  European 
state  which  could  not  obtain,"  in  time  of  war,  "  all  the  sup- 
plies she  wished  for  by  land  carriage  from  neighboring 
neutral  ports,  with  which  according  to  the  doctrine  in  ques- 
tion, neutrals  would  be  free  to  trade  in  contraband  without 
the  slightest  hindrance  from  the  other  belligerent"41 

The  view  taken  by  Mr.  Lawrence  would  seem  unfair  to 

39  Principles  of  Int.  Law,  p.  679. 

40  The  German  argument  was  that  according  to  English  expres- 
sion in  the  past,  notably  in  1863,  and  expressly  in  her  own  naval 
guide,  there  could  not  be  contraband  of  war  between  neutral  ports. 

41  Principles  of  Int.  Law,  p.  680. 


25 5j  Contraband  of  War  and  Neutral  Ports.  103 

the  proposed  rules  in  a  number  of  points.  Count  Von 
Biilow  clearly  pointed  out  that  belligerent  vessels  might  cap- 
ture a  neutral  vessel  if  the  latter  resisted  the  order  to  stop, 
or  if  irregularities  were  discovered  in  her  papers,  or  if  the 
presence  of  contraband  were  revealed.  Under  the  term 
"  contraband  of  war  "  he  admitted  that  articles  and  persons 
suited  for  war  might  be  included,  provided  they  were  at  the 
same  time  destined  for  the  use  of  one  of  the  belligerents, 
and  he  was  ready  to  admit  that  discovered  contraband 
should  be  confiscable.  It  is  true  the  caution  was  added  that 
should  the  seizure  prove  to  be  unjustifiable  the  belligerent 
State  should  be  bound  to  order  immediate  release  and  make 
full  compensation,  and  that  the  right  of  visit  and  search 
should  be  exercised  with  as  much  consideration  as  possible 
and  without  undue  molestation  to  neutral  commerce.  It 
was  understood  that  neutral  merchant  vessels  on  the  high 
seas  or  in  the  territorial  waters  of  the  belligerent  powers 
should  be  liable  to  visit  and  search,  but  again  with  the  nec- 
essary caution  that  the  right  should  not  be  exercised  in 
waters  too  remote  from  the  seat  of  war,  and  that  additional 
consideration  be  conceded  to  mail  steamers.42 

There  would  seem  to  be  no  necessary  opposition  between 
the  German  position  in  1900  and  that  taken  by  the  Supreme 
Court  of  the  United  States  in  1863  with  reference  to  the 
ships  Springbok  and  Peterhof.  In  the  latter  case  the  cargo 
of  the  ship  was  condemned  on  the  ground  that  the  goods, 
not  necessarily  contraband  in  character,  were  being  carried 
into  the  neutral  Mexican  port  of  Matamoras.  It  was  be- 
lieved, however,  that  the  goods  were  not  intended  to  be 
sold  there  as  a  matter  of  trade,  but  were  destined  for  the 
use  of  the  forces  of  the  Southern  Confederacy  across  the 
Rio  Grande  River.  To  these  belligerent  forces  it  was  pre- 
sumed the  goods  were  to  be  conveyed  as  the  final  stage  of 
their  voyage,  but  the  decision  of  the  court  was  distinctly 
upon  the  guilt  of  a  breach  of  blockade.43  The  character  of 

42  Sessional  Papers,  Africa,  No.   i    (1900),  C.  33,  p.  24.     Speech 
in  Reichstag,  Jan.  19,  1900. 
"Sessional  Papers,  Miscl.,  No.  i   (1900),  C.  34,  p.  60. 


IO4          Neutral  Rights  in  the  Anglo-Boer  War.         [256 

the  goods  did  not  give  just  ground  for  seizure  provided 
they  were  intended  in  good  faith  for  a  neutral  market,  but 
the  character  of  the  goods  showed  that  they  were  not  so 
intended,  and  the  simulated  papers  of  the  ship  substantiated 
this  suspicion.  But  it  is  to  be  repeated,  condemnation  was 
declared  upon  the  ground  of  an  intended  breach  of  an 
established  blockade  as  the  final  stage  of  the  voyage.  Had 
there  been  no  blockade  of  the  Southern  States  these  decis- 
ions could  not  have  been  upheld.  No  contraband  of  war 
was  possible  between  the  neutral  ports  in  the  course  of 
bona  fide  neutral  trade,  but  the  character  of  the  goods  and 
the  dishonest  character  of  the  ships  made  possible  the  con- 
clusive presumption  that  the  goods  were  ultimately  in- 
tended for  the  blockaded  enemy. 

In  the  seizure  of  the  German  ships,  on  the  other  hand, 
the  British  Government  was  not  able  to  show  that  the  ships 
were  really  carrying  contraband  or  that  there  was  any 
irregularity  in  their  papers.  The  protest  of  the  German 
Government  and  its  later  announcement  of  certain  rules 
which  should  govern  such  cases  merely  cautioned  Great 
Britain  against  an  undue  exercise  of  the  recognized  right 
of  visit  and  search.  The  attempt  was  not  made  to  lay 
down  a  new  system  of  principles  which  would  render  the 
carrying  of  contraband  by  neutrals  unhampered  by  the 
belligerents,  for  Count  Von  Billow  in  setting  forth  the 
tentative  system  which  in  the  opinion  of  his  Government 
would  protect  neutral  commerce  in  time  of  war  laid  stress 
upon  the  fact  that  there  are  as  yet  no  legal  principles  fixed 
and  binding  on  all  the  maritime  Powers,  respecting  the 
rights  of  neutrals  to  trade  with  a  belligerent,  or  the  rights 
of  belligerents  in  respect  to  neutral  commerce.  He  pointed 
out  that,  although  proposals  had  been  repeatedly  made  to 
regulate  this  subject  all  attempts  had  failed  owing  to  the 
obstacles  created  by  the  conflicting  views  of  the  different 
Powers. 

The  Peace  Conference  at  the  Hague  has  in  fact  expressed 
the  wish  that  an  international  conference  might  regulate, 


257]          Contraband  of  War  and  Neutral  Ports.           105 

on  the  one  hand,  the  rights  and  duties  of  neutrals,  and  on 
the  other,  the  question  of  private  property  at  sea.  The 
German  Chancellor  intimated  that  his  Government  would 
support  any  plan  of  the  kind  for  more  clearly  defining  the 
disputed  points  of  maritime  law.  The  fact  was  pointed 
out  that  maritime  law  is  still  in  a  "  liquid,  elastic,  and  im- 
perfect state,"  that  with  many  gaps  which  are  only  too 
frequently  apt  to  be  supplemented  by  armed  force  at  crit- 
ical junctures,  this  body  of  law  opens  the  way  for  the  criti- 
cism that  "  the  standard  of  might  has  not  as  yet  been 
superseded  by  the  standard  of  right." 

The  Institute  of  International  Law  which  met  at  Venice 
in  1896  declared  that  the  destination  of  contraband  goods 
to  an  enemy  may  be  shown  even  when  the  vessel  which 
carries  them  is  bound  to  a  neutral  port.  But  it  was  con- 
sidered necessary  to  add  the  caution  that  "  evident  and 
incontestable  proof "  must  make  clear  the  fact  that  the 
goods,  contraband  in  character,  were  to  be  taken  on  from 
the  neutral  port  to  the  enemy,  as  the  final  stage  of  the 
same  commercial  transaction. 

This  latter  condition  the  English  Government  failed  to 
fulfil  in  the  cases  of  the  Bundesrath,  Herzog  and  General, 
and  it  was  this  failure  which  gave  just  ground  for  Germany's 
protests.  Great  Britain  not  only  failed  to  show  by  "  evi- 
dent and  incontestable  proof  "  that  the  German  ships  carried 
actual  contraband,  but  she  failed  to  show  that  there  were 
on  board  what  have  been  called  "  analogues  "  of  contra- 
band. The  point  was  emphasized  indeed  that  while  special 
consideration  would  be  shown  to  all  German  mail  steamers, 
not  every  steamer  which  "carried  a  bag  of  letters"  could 
claim  this  partial  immunity.  The  English  representative 
said :  "  We  understand  by  mail  steamers,  steamers  of  sub- 
sidized lines,  and  consequently  owned  by  persons  whom 
the  German  Government  consider  as  respectable."44  And 
in  this  intimation  he  merely  voiced  the  suspicion  in  Eng- 
land that  with  or  without  the  knowledge  of  the  Government 

"Sessional  Papers,  Africa,  No.  I   (1900),  C.  33,  p.  21;  Salisbury 
to  Lascelles,  Jan.  16,  1900. 


io6         Neutral  Rights  in  the  Anglo-Boer  War.         [258 

the  German  ships  had  been  guilty  of  unneutral  service, 
which  the  more  recent  authorities  on  international  law  dis- 
tinguished from  the  carrying  of  contraband. 

It  is  generally  agreed  that  neutral  mail  steamers  and 
other  vessels  carrying  the  mails  by  agreement  with  neutral 
governments  have  in  certain  respects  a  peculiar  position. 
Their  owners  and  captains  cannot  be  held  responsible  for 
the  nature  of  the  numerous  communications  they  carry. 
It  is  equally  well  understood  that  a  neutral  may  not  transmit 
signals  or  messages  for  a  belligerent,  nor  carry  enemy's 
despatches,  nor  transport  certain  classes  of  persons  in  the 
service  of  a  belligerent.  But  mail  steamers  may  carry 
persons  who  pay  for  their  passage  in  the  usual  way  and 
come  on  board  as  ordinary  passengers,  even  though  they 
turn  out  to  be  officers  of  one  or  the  other  of  the  belligerents. 
Although  the  tendency  of  modern  times  to  exempt  mail 
ships  from  visit  and  search  and  from  capture  and  con- 
demnation is  not  an  assured  restriction  upon  belligerent 
interests,  it  is  a  right  which  neutrals  are  entitled  to  demand 
within  certain  well-defined  limits.  It  was  understood  when 
this  immunity  was  granted  by  the  United  States  in  1862 
that  "  simulated  mails  verified  by  forged  certificates  and 
counterfeit  seals  "  were  not  to  be  protected.45 

During  the  controversy  between  the  English  and  Ger- 
man Governments  with  reference  to  the  seizure  of  the  three 
German  ships,  Professor  T.  E.  Holland,  the  editor  of  the 
British  Admiralty  Manual  of  Prize  Law  of  1888,  declared : 
"  The  carriage  by  a  neutral  ship  of  troops,  or  of  even  a 
few  military  officers,  as  also  of  enemy  despatches,  is  an 
enemy  service  of  so  important  a  kind  as  to  involve  the  con- 
fiscation of  the  vessel  concerned,  a  penalty  which  under 
ordinary  circumstances,  is  not  imposed  upon  the  carriage 
of  contraband  property  so  called."46  Under  this  head  if 
would  seem  the  alleged  offense  of  the  ship  Bundesrath  may 

"Wheaton,  International  Law,  Dana's  Ed.,  p.  659,  note. 

48  International  Law  Situations,  Naval  War  College,  1900,  p.  98. 
Also  Arguments  of  Lord  Stowell  in  the  case  of  the  Orozembo, 
6  Rob.  430;  and  the  Atlanta,  6  Rob.  440. 


2 59]  Contraband  of  War  and  Neutral  Ports.           107 

properly  be  classed,  and  charges  of  a  similar  character  were 
made  against  the  ships  General  and  Herzog.  It  was  sus- 
pected that  persons  on  board  variously  described  as  of  a 
military  appearance  were  on  their  way  to  the  Transvaal  to 
enlist.  The  suspicion,  however,  could  not  be  proved,  and 
the  result  was  that  the  ships  were  released  without  guilt 
upon  the  charge  of  unneutral  service  or  upon  that  of  carry- 
ing contraband  goods  in  the  usual  sense  of  the  term  con- 
traband. 

In  connection  with  the  attitude  of  Great  Britain  in  regard 
to  the  doctrine  of  continuous  voyages  as  applied  to  both 
goods  and  persons  bound  for  Delagoa  Bay,  it  is  interesting 
to  note  the  view  expressed  by  a  leading  English  authority 
upon  international  law  with  reference  to  the  seizure  of 
the  ship  Gaelic  by  the  Japanese  Government  during  the 
Chino- Japanese  War.  The  Gaelic,  a  British  mail  steamer, 
was  bound  from  the  neutral  port  of  San  Francisco  for  the 
British  port  of  Hongkong.  Information  had  reached 
Japan  that  there  were  on  board  persons  seeking  service 
with  the  Chinese  Government  and  carrying  a  certain  kind 
of  material  intended  to  destroy  Japanese  ships. 

Japan  arrested  the  ship  at  Yokohama  and  had  her 
searched.  The  suspected  individuals,  it  was  discovered,  had 
escaped  and  taken  the  French  mail-ship  Sidney  from  Yoko- 
hama to  Shanghai.  Nevertheless  the  search  was  continued 
by  the  Japanese  authorities  in  the  hope  of  finding  contra- 
band. The  British  Government  protested,  and  this  protest 
is  especially  significant  in  view  of  the  English  contention  in 
the  cases  of  the  German  mail  steamers.  The  protest  against 
the  further  detention  and  search  of  the  Gaelic  was  made  on 
the  ground  that  the  ship  did  not  have  a  hostile  destina- 
tion, Sagasaki,  a  port  in  Japanese  territory,  being  the  only 
port  of  call  between  Yokohama  and  Hongkong.  It  was 
shown  by  the  Japanese  that  ships  of  the  company  to  which 
the  Gaelic  belonged  often  called  at  Amoy,  China,  a  bellig- 
erent port,  but  sufficient  proof  was  not  advanced  to  show 


io8          Neutral  Rights  in  the  Anglo-Boer  War.         [260 

that  there  was  any  intention  to  touch  there  on  the  voyage 
in  question.47 

The  British  assertion  that  the  neutral  destination  of  the 
ship  precluded  the  possibility  of  a  search  being  made,  and 
that  it  was  immaterial  whether  anything  on  board  had  a 
hostile  destination  ulterior  to  that  of  the  ship,  appears  rather 
surprising  when  it  is  seen  to  be  almost  the  opposite  of  the 
position  taken  in  the  seizures  of  ships  bound  for  Delagoa 
Bay  in  Portuguese  territory.  Japan  on  the  other  hand  main- 
tained that  the  proceedings  were  entirely  correct  on  the 
ground:  (i)  of  the  probability  that  the  Gaelic  might  call  at 
Amoy;  (2)  that  the  doctrine  of  continuous  voyages  was 
applicable  in  connection  with  contraband  persons  or  goods 
if  they  were  destined  for  the  Chinese  Government  even  by 
way  of  Hongkong.  This  it  will  be  remembered  was  practi- 
cally the  view  taken  by  Great  Britain  in  the  German  seizures, 
though  strenuously  opposed  in  this  incident. 

Professor  Westlake,  commenting  upon  the  case  of  the 
Gaelic,  states  the  English  view  of  the  doctrine  of  continuous 
voyages  as  affecting:  (i)  goods  which  are  contraband  of 
war  and  (2)  persons  who  are  contraband  of  war,  or  ana- 
logues of  contraband.  Goods,  he  says,  may  be  consigned 
to  purchasers  in  a  neutral  port,  or  to  agents  who  are  to  offer 
them  for  sale  there,  and  in  either  case  what  further  becomes 
of  them  will  depend  on  the  consignee  purchasers  or  on  the 
purchasers  from  the  agents.  He  contends  that  "  such  goods 
before  arriving  at  the  neutral  port  have  only  a  neutral  des- 
tination; on  arriving  there  they  are  imported  into  the  stock 
of  the  country,  and  if  they  ultimately  find  their  way  to  a 
belligerent  army  or  navy  it  will  be  in  consequence  of  a  new 
destination  given  them,  and  this  notwithstanding  that  the 
neutral  port  may  be  a  well-known  market  for  the  belliger- 
ent in  question  to  seek  supplies  in,  and  that  the  goods  may 
notoriously  have  been  attracted  to  it  by  the  existence  of 
such  a  market."48 

4T  Takahashi,  Int.  Law  during  the  Chino-Japanese  War,  pp.  xvii- 
xxvii.  Note  on  Continuous  Voyages  and  Contraband  of  War  by 
J.  Westlake;  also  L.  Q.  Rev.,  Vol.  15,  p.  24. 

48  L.  Q.  Rev.,  Vol.  15,  p.  25. 


261]  Contraband  of  War  and  Neutral  Ports.          109 

It  is  obvious  that  this  was  the  position  taken  by  Germany 
and  other  nations  with  reference  to  the  interference  with 
neutral  commerce  bound  for  Delagoa  Bay.  Professor  West- 
lake  continues  in  regard  to  the  Japanese  incident :  "  The 
consignors  of  the  goods  may  have  had  an  expectation  that 
they  would  reach  the  belligerent  but  not  an  intention  to  that 
effect,  for  a  person  can  form  an  intention  only  about  his 
own  acts  and  a  belligerent  destination  was  to  be  impressed 
on  the  goods,  if  at  all,  by  other  persons."  Thus  it  is  agreed, 
he  says,  "  that  the  goods  though  of  the  nature  of  contra- 
band of  war,  and  the  ship  knowingly  carrying  them,  are 
not  subject  to  capture  during  the  voyage  to  the  neutral 
port."49 

The  German  Government  could  not  have  based  its  pro- 
test against  the  seizure  of  German  mail  steamers  upon  a 
stronger  argument  for  the  correctness  of  its  position  than 
upon  this  view  expressing  the  English  Government's  atti- 
tude toward  neutral  commerce  at  the  time  of  the  seizure  of 
the  Gaelic.  Professor  Westlake  points  out,  however,  that 
goods  on  board  a  ship  destined  for  a  neutral  port  may  be 
under  orders  from  her  owners  to  be  fonvarded  thence  to  a 
belligerent  port,  army  or  navy,  either  by  a  further  voyage 
of  the  same  ship  or  by  transshipment,  or  even  by  land 
carriage.  He  shows  that  such  goods  are  to  reach  the  bel- 
ligerent "  without  the  intervention  of  a  new  commercial 
transaction  in  pursuance  of  the  intention  formed  with  re- 
gard to  them  by  the  persons  who  are  their  owners  during 
the  voyage  to  the  neutral  port.  Therefore  even  during  that 
voyage  they  have  a  belligerent  destination,  although  the 
ship  which  carries  them  may  have  a  neutral  one."60  In 
such  a  case,  he  declares,  by  the  doctrine  of  continuous  voy- 
ages, "the  goods  and  the  knowingly  guilty  ship  are  cap- 
turable  during  that  voyage."  In  a  word,  "goods  are  con- 
traband of  war  when  an  enemy  destination  is  combined  with 
the  necessary  character  of  the  goods."  And  it  is  pointed  out 

0  L.  Q.  R.,  Vol.  15,  p.  25.     Italics  our  own. 
"Ibid.,  p.  25. 


no          Neutral  Rights  in  the  Anglo-Boer  War.         [262 

that  "  the  offense  of  carrying  contraband  of  war  "  in  view 
of  the  doctrine  of  continuous  voyages  is  committed  by  a 
ship  "  which  is  knowingly  engaged  in  any  part  of  the  car- 
riage of  the  goods  to  their  belligerent  destination."61 

It  is  shown  that  even  if  the  doctrine  of  continuous  voyages 
is  denied  as  having  any  validity,  it  may  still  be  held  that  "  the 
goods  and  the  knowingly  guilty  ship  are  liable  before  reach- 
ing the  neutral  port  if  that  port  is  only  to  be  a  port  of  call, 
the  ultimate  destination  of  the  ship  as  well  as  of  the  goods 
being  a  belligerent  one."  52  But  if  the  doctrine  of  continuous 
voyages  is  denied  it  may  also  be  questioned  "  that  a  further 
intended  carriage  by  transshipment  or  by  land  can  be  united 
with  the  voyage  to  the  neutral  port  so  as  to  form  one  carriage 
to  a  belligerent  destination,  and  make  the  goods  and  the 
knowingly  guilty  ship  liable  during  the  first  part  "  of  the 
voyage.53  In  other  words,  a  belligerent  destination  both  of 
the  goods  and  of  the  ship  carrying  them  would  be  required. 

In  regard  to  the  doctrine  of  continuous  voyages  as  applied 
to  persons,  Professor  Westlake  says,  in  speaking  of  the 
Gaelic,  "  When  a  person  whose  character  would  stamp  him 
as  contraband,  or  an  analogue  of  contraband,  is  a  passenger 
on  board  a  ship  bound  for  a  neutral  port,  and  having  no 
ulterior  destination,  but  intends  on  arriving  there  to  proceed 
to  a  belligerent  port,  there  is  no  closer  connection  between 
the  two  parts  of  his  journey  than  that  he  should  hold  a 
through  ticket  to  the  belligerent  port."  It  is  pointed  out 
that  the  distinction  between  a  person  when  considered  as 
contraband  and  goods  or  despatches  is  that  "  the  person 
cannot  be  forwarded  like  a  thing."  Thus  in  the  case  of  a 
person  holding  a  through  ticket,  the  ticket  is  merely  a  facility, 
but  it  must  depend  upon  the  person  whether  he  will  use  it, 
and  consequently,  where  the  passenger  is  booked  only  to  a 
neutral  port,  he  "cannot  constructively  be  considered  as 
bound  for  a  belligerent  destination  until  he  is  actually  bound 
for  one."  5* 


.,  p.  26. 
.,  p.  26. 
54  Ibid.,  p.  29.     Italics  our  own. 


263]          Contraband  of  War  and  Neutral  Ports.  1 1 1 

Upon  Professor  Westlake's  reasoning  the  whole  conten- 
tion of  the  English  Government  in  arresting  passengers  upon 
German  mail  steamers  bound  for  Delagoa  Bay  falls  to  the 
ground,  for  he  continues :  "  There  must  for  such  a  destina- 
tion be  a  determination  of  his  own  which  during  the  first 
part  of  his  journey  inevitably  remains  contingent  and  which 
is  therefore  analogous  to  the  new  determination  which  may 
be  given  in  the  neutral  port  as  to  the  employment  of  goods 
which  have  found  a  market  there."  Consequently  he  says: 
"  The  doctrine  of  continuous  voyages  cannot  be  applied  to 
the  carriage  of  persons.  ...  A  neutral  destination  of  the 
ship  is  conclusive  in  the  case  of  passengers  taken  on  board 
in  the  regular  course."  "  Accordingly,  Professor  Westlake 
reaches  the  conclusion  that  the  search  of  the  Gaelic  was 
unjustifiable  under  the  right  of  belligerents  against  neutrals 
on  the  high  seas.66 

The  application  which  Great  Britain  attempted  to  make 
of  the  doctrine  of  continuous  voyages  proved  unsuccessful 
both  with  reference  to  contraband  for  neutral  ports  and  the 
carrying  of  analogues  of  contraband  by  German  mail  steam- 
ers bound  for  Delagoa  Bay.  In  the  end  the  British  Govern- 
ment paid  to  the  German  East  African  Line  owning  the 
Bundesrath,  Herzog  and  General,  £20,000  sterling,  together 
with  an  additional  sum  of  £5,000  as  compensation  to  the 
consignees.  For  the  detention  of  the  ship  Hans  Wagner,  a 
German  sailing  boat  which  had  been  arrested  on  February 
6,  1900,  the  sum  of  £4,437  sterling  was  paid.  The  allegation 
in  this  case  was  that  of  carrying  contraband,  but  the  ship 
was  finally  released  without  the  cargo  being  examined,  a 
fact  which  indicates  that  in  this,  the  last  of  the  German  ves- 
sels to  be  seized,  Great  Britain  realized  the  futility  of  at- 
tempting to  interfere  with  commerce  between  neutral  ports. 

The  recommendations  for  the  adjustment  of  the  difficulty 
in  the  several  cases  were  made  by  a  commission  of  five 
members,  two  of  whom  were  Germans,  and  the  awards  gave 

"L.  Q.  R.,p.  32. 

'  He  hold,  however,  that  the  search  was  justifiable  as  an  exercise 
of  the  police  power  of  Japan  within  her  own  territorial  waters. 


112          Neutral  Rights  in  the  Anglo-Boer  War.         [264 

general  satisfaction  in  Germany.  The  East  African  Line 
congratulated  Count  Von  Biilow  upon  the  energetic  manner 
in  which  he  had  handled  the  incidents.  German  commercial 
interests  considered  that  they  might  count  upon  the  effective 
support  of  the  Government,  and  that  the  result  was  a  com- 
plete justification  of  the  attitude  which  Germany  had  as- 
sumed with  regard  to  the  conflicting  interests  of  belligerents 
and  neutrals. 


CHAPTER   IV. 
TRADING  WITH  THE  ENEMY. 

Almost  contemporaneously  with  the  German-English  con- 
troversy with  reference  to  the  restrictions  which  might  legit- 
imately be  put  upon  German  mail  steamers  Great  Britain 
and  the  United  States  became  involved  in  a  lengthy  corre- 
spondence. 

Various  articles  of  the  general  nature  of  foodstuffs  were 
seized  upon  ships  plying  between  New  York  and  Delagoa 
Bay.  It  developed  later  that  the  seizures  were  justified  by 
England  not  upon  the  ground  of  the  guilt  of  carrying  con- 
traband per  se,  but  because  an  English  municipal  regulation 
was  alleged  to  have  been  violated  by  English  subjects  in 
that  they  had  traded  with  the  enemy.  But  the  fact  was 
incontrovertible  that  the  port  of  destination  as  well  as  that 
of  departure  was  neutral.  The  burden  of  proof  under  the 
circumstances  rested  upon  the  captor  to  show  that  goods 
innocent  in  themselves  were  really  intended  for  the  enemy. 
Consequently  the  line  of  justification  which  was  set  up  in- 
volved not  merely  an  extension  of  the  doctrine  of  contin- 
uous voyages,  but  an  application  of  this  much  mooted  theory 
that  would  show  an  ultimate  intention  to  trade  with  the 
enemy. 

The  offense  of  trading  with  the  enemy  is  not  a  new  one  in 
international  law.  In  1799  Sir  William  Scott,  afterwards 
Lord  Stowell,  sitting  upon  the  case  of  the  Hoop,  which  is 
perhaps  the  leading  case  upon  the  subject,  declared  that  all 
trading  with  the  enemy  by  the  subjects  of  one  State  without 
the  permission  of  the  sovereign  is  interdicted  in  time  of 
war.1  It  was  pointed  out  that,  according  to  the  law  of 
Holland,  of  France,  of  Spain  and  as  a  matter  of  fact  of 
all  the  States  of  Europe,  "  when  one  state  is  at  war  with 

1 1  C.  Rob.  200. 

8  113 


U4         Neutral  Rights  in  the  Anglo-Boer  War.         [266 

another,  all  the  subjects  of  the  one  are  considered  to  be  at 
war  with  all  the  subjects  of  the  other  and  all  intercourse 
and  trade  with  the  enemy  is  forbidden."  This  principle  has 
been  accepted  in  the  United  States  as  one  of  the  conditions 
of  warfare.  Wheaton  declares :  "  One  of  the  immediate 
consequences  of  the  commencement  of  hostilities  is  the  in- 
terdiction of  all  commercial  intercourse  between  the  sub- 
jects of  the  States  at  war  without  the  license  of  their  respec- 
tive Governments."2 

In  England  a  declaration  of  war  is  equal  to  an  Act  of 
Parliament  prohibiting  all  intercourse  with  the  enemy  except 
by  the  license  of  the  Crown.  The  penalty  of  such  illegal 
intercourse  is  the  confiscation  of  the  cargo  and  of  the  ship 
engaged  in  such  trade.  The  instructions  are  emphatic  upon 
the  point :  "  The  commander  should  detain  any  British  vessel 
which  he  may  meet  with  trading  with  the  enemy  unless, 
either:  (i)  He  is  satisfied  that  the  master  was  pursuing 
such  trade  in  ignorance  that  war  had  broken  out,  or,  (2) 
The  vessel  is  pursuing  such  trade  under  a  license  from  the 
British  Government."3 

When  a  vessel  is  bound  for  a  belligerent  port  it  appears 
that  the  burden  of  proof  is  thrown  upon  the  ship's  captain 
to  show  that  goods  so  shipped  are  not  intended  for  the 
enemy.  In  the  case  of  the  Jonge  Pieter  (1801)  goods  pur- 
chased in  England  were  shipped  for  an  enemy  port  but  were 
seized  by  a  British  cruiser  under  the  right  of  a  belligerent. 
It  was  attempted  to  be  set  up  that  the  goods  belonged  to 
citizens  of  the  United  States,  but  in  the  absence  of  docu- 
mentary proof  condemnation  was  decreed  on  the  ground 
of  hostile  ownership.4 

The  decisions  in  these  cases  as  well  as  the  general  opinion 
of  the  past  had  shown  what  the  British  view  was,  namely, 

2  Elements  of  International  Law,  Dana  Ed.  (1866),  §309  et  seq. 

'British  Admiralty  Manual  of  Naval  Prize  Law    (1888),  §38. 

*4  C.  Rob.  79?  other  cases  bearing  upon  the  subject  are:  the 
Samuel  (1802),  4  C.  Rob.  284  N;  the  Nayade  (1802),  4  C.  Rob.  251 ; 
the  Franklin  (1805),  6  C.  Rob.  127;  see  also  Kent's  Commentaries, 
Vol.  I,  p.  87;  Halleck,  International  Law  (1878),  Vol.  II,  p.  130; 
Moore,  Digest  of  Int.  Law,  Vol.  VII,  p.  534;  White,  L.  Q.  Rev.,  Vol. 
1 6,  p.  407. 


267]  Trading  with  the  Enemy.  1 1 5 

that  all  trading  with  the  enemy  is  absolutely  forbidden  to 
British  subjects  upon  the  outbreak  of  war.  But  in  the  con- 
troversy between  the  English  Government  and  that  of  the 
United  States  with  reference  to  foodstuffs  bound  for  Del- 
agoa  Bay  on  board  English  ships  the  argument  set  up  by 
the  British  authorities  was  not  generally  considered  well 
founded,  since  little  more  than  suspicion  was  produced  as 
evidence  to  show  that  any  of  the  ships  really  intended  to 
trade  with  the  enemy.  There  was  no  dissent  from  the  es- 
tablished rule  that  trading  with  the  enemy  on  the  part  of 
the  subjects  of  the  belligerent  States  is  prohibited.  But 
those  nations  whose  citizens  or  subjects  suffered  loss  by  the 
enforcement  of  the  English  law  were  not  satisfied  that  the 
English  ordinance  had  been  violated  either  in  deed  or  by 
intent. 

Soon  after  war  had  begun  it  was  known  that  the  English 
authorities  would  scrutinize  closely  any  transactions  of 
British  ships,  or  of  ships  leased  by  English  firms,  which  had 
dealings  in  a  commercial  way  with  the  warring  Republics. 
On  November  24  the  Official  Imperial  Gazette  of  Berlin 
had  published  the  following  note :  "  According  to  official 
information  British  subjects  are  forbidden  by  English  law 
to  have  any  trade  or  intercourse  with  the  South  African 
Republic  and  the  Orange  Free  State,  or  with  the  subjects 
of  these  two  states,  within  their  territories,  during  the  con- 
tinuance of  the  present  state  of  war."5  Because  of  this  pro- 
hibition, it  was  pointed  out,  all  goods  sent  by  English  ships 
and  intended  for  the  South  African  Republic  or  the  Orange 
Free  State  and  ships  of  war,  even  in  cases  where  the  goods 
were  not  contraband  of  war,  might  be  legally  detained  by 
the  British  authorities.  Attention  was  called  to  the  fact 
that  this  measure  might  also  be  applied  to  goods  destined 
for  ports  in  the  neighborhood  of  the  seat  of  war  and  not 
belonging  to  Great  Britain.  German  commercial  circles 
were  warned  that  they  should  consider  whether  under  the 
circumstances  it  was  not  to  their  interest  to  avoid  using 

"London  Times,  Nov.  24,  1899,  p.  7,  col.  4. 


n6          Neutral  Rights  in  the  Anglo-Boer  War.         [268 

British  ships  for  transporting  goods  to  South  Africa  during 
the  war. 

Notwithstanding  this  announcement,  toward  the  close  of 
December  the  British  Foreign  Office  stated  that  information 
had  reached  the  Secretary  of  State  for  Foreign  Affairs  which 
showed  that  it  was  not  generally  known  that  trading  with  the 
enemy  was  unlawful.  The  English  view  of  the  restrictions 
upon  British  subjects  was  thus  pointed  out :  "  British  subjects 
may  not  in  any  way  aid,  abet,  or  assist  the  South  African  Re- 
public or  the  Orange  Free  State  in  the  prosecution  of  hos- 
tilities, nor  carry  on  any  trade  with,  nor  supply  any  goods, 
wares  or  merchandise  to  either  of  those  Republics  or  to 
any  person  resident  therein,  nor  supply  any  goods,  wares, 
or  merchandise  to  any  person  for  transmission  to  either 
Republic,  or  to  any  person  resident  there,  nor  carry  any 
goods  or  wares -destined  for  either  of  the  Republics  or  for 
any  person  resident  therein."6  It  was  further  declared  that 
these  restrictions  applied  to  all  foreigners  while  they  were 
on  British  territory,  and  that  all  persons,  whether  British 
subjects  or  foreigners,  who  might  commit  any  of  the  pro- 
hibited acts  would  be  liable  to  such  penalty  as  the  law  pro- 
vided. 

These  municipal  restrictions  obviously  made  illegal  on  the 
part  of  English  subjects  and  of  strangers  temporarily  resi- 
dent upon  British  soil  all  commercial  acts,  from  one  country 
to  the  other,  all  buying  and  selling  of  merchandise,  con- 
tracts for  transportation,  as  well  as  all  operations  of  ex- 
change, or  the  carrying  out  of  any  contract  which  would  be 
to  the  advantage  of  the  enemy.  A  time-honored  English 
maxim  declares :  "  Est  prohibition  habere  commercium  cum 
initmcis." 

When  Great  Britain  attempted  to  enforce  these  recog- 
nized prohibitions  against  trading  with  the  enemy  it  was 
found  difficult  to  show  that  the  suspected  ships  had  in 
reality  had  dealings  with  the  public  enemy  or  with  its 

8  British  and  Foreign  State  Papers,  vol.  92,  p.  383.  Notice  .  .  . 
warning  British  Subjects  against  trading  with  the  enemy,  London, 
December  22,  1899. 


269]  Trading  with  the  Enemy.  1 1 7 

agents.  The  ships  were  not  bound  for  a  hostile  port  nor 
for  a  blockaded  one,  but  for  a  neutral  harbor  which  was  not 
even  contiguous  to  either  the  Transvaal  or  Orange  Free 
State.  Other  Governments,  although  ready  to  admit  that 
it  was  competent  for  England  to  forbid  her  own  subjects 
to  trade  with  the  enemy,  were  not  willing  to  allow  their 
respective  subjects  to  suffer  the  loss  of  goods  which  had 
been  shipped  in  good  faith.  The  character  of  the  goods 
apparently  excluded  the  idea  of  contraband  of  war,  and 
the  ships  themselves,  since  they  were  bound  from  neutral 
ports  to  a  neutral  port,  appeared  to  be  acting  in  good  faith. 

THE  SEIZURES.     MARIA,  MASHONA,  BEATRICE,  AND  SABINE. 

THE  MARIA. — As  early  as  September  6,  1899,  the  Maria, 
a  Dutch  ship,  had  touched  at  Cape  Town  on  her  way  to 
Delagoa  Bay  with  a  cargo  consisting  largely  of  flour, 
canned  meats  and  oats  shipped  from  New  York.7  She  was 
allowed  to  proceed  after  a  short  detention  by  the  British 
authorities  although  goods  in  her  cargo  were  plainly  marked 
for  the  Transvaal.  It  was  realized  under  the  circumstances 
that  there  was  no  ground  for  the  detention  of  ship  or  cargo, 
and  in  view  of  the  fact  that  no  war  was  in  progress  at  the 
time,  the  detention  of  the  vessel  even  for  a  short  period 
would  appear  to  have  been  unjustifiable.  The  Maria  called 
at  Port  Elizabeth,  whence  she  cleared  for  Delagoa  Bay. 
On  October  29  she  put  in  for  coal  at  Durban,  three  hundred 
miles  from  Lorenzo  Marques,  and  was  boarded  by  the  com- 
mander of  the  English  ship  Tartar.  The  Maria's  captain 
was  willing  to  be  visited  and  searched  without  protest. 
According  to  the  official  report,  "  no  guard  was  placed  on 
her,"  and  "  the  agents  were  willing  to  land  all  the  contra- 
band."8 The  commander  of  the  Tartar  informed  them  that 
if  this  were  submitted  to  the  vessel  need  no  longer  be  de- 
tained. When  the  Maria  had  been  brought  in  and  no 
contraband  was  discovered  by  the  search,  the  agents  of  the 

7  For.  Rel.,  1900,  p.  529. 
*  For.  Rel.,  1900,  p.  575. 


n8          Neutral  Rights  in  the  Anglo-Boer  War.         [270 

ship  protested  against  the  landing  of  that  portion  of  the 
cargo  consisting  of  flour  and  other  goods  which  they  con- 
sidered innocent,  but  spoke  of  the  vessel,  it  was  alleged,  as 
belonging  to  a  British  company  called  the  "  American- 
African  Line."  The  commander  of  the  English  cruiser 
pointed  out  to  them  that  British  subjects  could  not  under 
the  Governor's  proclamation  trade  with  the  enemy,  and 
mentioned  the  warning  in  a  local  customs  notice  as  the  pen- 
alty for  "  vessels  which  carried  contraband  of  war  or  goods 
of  whatever  nature  the  real  destination  of  which  was  the 
enemy  or  their  agents  in  neutral  ports."9 

The  Maria's  cargo  included  a  consignment  of  lubricating 
oil  as  well  as  a  miscellaneous  consignment  of  light  hard- 
ware. Part  of  the  cargo  was  seized  and  part  merely  "  de- 
tained." The  consignment  to  the  Netherlands  South  African 
Railway,  a  thousand  cases  of  lubricating  oil,  eighty- four 
cases  of  picks,  twenty  cases  of  handles,  was  seized  as  ene- 
my's property,  since  there  was  sufficient  evidence,  it  was 
thought,  to  show  that  these  goods  belonged  to  the  railway 
company,  the  consignees,  and  not  to  the  New  York  shippers, 
the  consignors.  This  opinion  was  held  on  the  ground  that 
the  Netherlands  South  African  Railway  was  owned  by  the 
South  African  Republic. 

All  of  the  Delagoa  Bay  cargo  including  the  flour  and 
other  foodstuffs  was  landed  and  the  Maria  put  to  sea.  But 
on  November  3  the  authorities  at  Durban  were  instructed 
by  the  British  Foreign  Office  that  foodstuffs  were  not  to 
be  treated  as  contraband,  and  the  captain  of  the  British 
cruiser  Philomel  warned  the  customs  that  the  flour  should 
no  longer  be  detained.  It  was  released  and  measures  were 
at  once  taken  for  reshipping  it  on  the  British  steamer 
Matabele,  when  it  seems  for  the  first  time  to  have  occurred 
to  the  customs  authorities  that  the  flour  might  thus  find  its 
way  to  Pretoria  by  means  of  an  English  ship.  According 
to  the  official  report :  "  It  was  then  provisionally  detained 
again.  But  on  it  being  found  that  the  flour  was  bona  fide 

*  For.  Rel.,  1900,  p.  575- 


27 1  ]  Trading  with  the  Enemy.  119 

a  part  of  the  Maria's  cargo  the  agents  and  all  parties  con- 
cerned were  told  that  no  further  restrictions  would  be 
placed  on  the  shipment,  but  it  was  at  the  same  time  pointed 
out  that  the  flour  was  going  direct  to  the  enemy.  The 
Governor's  proclamation  against  trading  with  the  enemy 
was  then  studied  in  connection  with  the  above-mentioned 
permission,  with  the  result  that  agents,  shippers,  and  ship- 
owners all  refused  to  ship  or  carry  the  flour  and  nobody 
would  have  anything  to  do  with  it,"  although  no  objection 
was  made  by  the  naval  authorities  to  the  cargo  being  for- 
warded to  its  destination.10 

For  the  detention  of  the  Maria  her  owners,  upon  the  pro- 
test of  the  Netherlands  Government,  were  awarded  £126 
sterling  as  indemnity.  The  consignment  of  flour  "  de- 
tained "  at  Durban  was  purchased  by  the  English  Govern- 
ment at  the  price  it  would  have  brought  at  Delagoa  Bay 
on  November  2,  the  day  on  which  it  would  presumably  have 
reached  there  had  no  interruption  occurred.11 

It  was  pointed  out  in  the  report  upon  the  case  that  the 
Maria  was  undoubtedly  a  Dutch  ship  and  that  her  agents 
had  introduced  an  element  of  confusion  in  the  dealings 
with  her  by  speaking  of  her  as  belonging  to  a  British  com- 
pany. It  was  therefore  admitted  that  possibly  some  of  the 
goods  were  removed  on  the  erroneous  supposition  that  she 
was  a  British  ship  and  could  not  lawfully  carry  them. 
Had  she  been  a  Dutch  ship  leased  by  a  British  firm  her 
liability  would  appear  to  have  been  as  great  as  if  she  had 
been  a  vessel  owned  by  British  subjects.  Had  she  belonged 
to  a  British  company  she  would  have  been  a  British  ship, 
and  it  would  have  been  unlawful  for  her  to  carry  for  the 
enemy. 

THE  MASHONA. — On  December  5,  1899,  the  Mashona, 
clearing  from  New  York  for  Delagoa  Bay,  was  seized  by  the 
British  cruiser  Partridge  near  Port  Elizabeth,  seven  hun- 
dred and  fifty  miles  from  Lorenzo  Marques,  and  taken  into 

10  For.  Rel.,  1900,  p.  575. 
"For.  Rel.,  1900,  p.  610. 


I2O         Neutral  Rights  in  the  Anglo-Boer  War.         [272 

Table  Bay,  but  later  to  Cape  Town  as  prize  on  the  charge 
of  trading  with  the  enemy.  Consul-General  Stowe  reported 
the  capture,  and  informed  the  Department  at  Washington 
that  the  Mashona  carried  five  thousand  tons  of  general 
cargo,  including  seventeen  thousand  bags  of  flour  for  the 
Transvaal  by  way  of  Delagoa  Bay.  Foreseeing  the  prob- 
ability that  the  Mashona  would  be  brought  into  Cape  Town 
as  prize,  Mr.  Stowe  inquired :  "  Is  foodstuff  such  as  flour, 
contraband?  Being  a  British  ship  has  the  British  Govern- 
ment a  right  to  seize  ?  "12 

Counsel  for  the  original  American  shippers  upon  the 
Mashona  stated  that  the  cargo  was  of  the  character  of 
general  merchandise  and  was  destined  "  for  neutral  citizens 
domiciled  in  neutral  territory."  It  was  pointed  out  in  the 
prayer  of  the  owners  of  this  portion  of  the  cargo  that  while 
the  British  Government  might  be  justified  in  seizing  her 
own  vessels,  it  appeared  that  the  British  naval  authorities 
were  illegally  jeopardizing  the  property  of  American  citi- 
zens in  that  the  vessel  seized  was  "  under  contract  to  deliver 
to  the  persons  named  in  the  invoices  the  merchandise  therein 
specified,  none  of  which  is  contraband  of  war."13 

One  portion  of  another  shipment  was  on  account  of  a 
Delagoa  Bay  firm,  the  other  on  account  of  a  London  one. 
With  reference  to  the  goods  consigned  to  the  latter  firm  the 
American  shippers  were  unable  to  say  what  their  ultimate 
destination  might  be,  but  in  regard  to  the  shipment  to 
Delagoa  Bay  they  were  positive  that  the  consignees  were  a 
firm  doing  a  large  local  business  in  Lorenzo  Marques.  To 
the  best  of  their  knowledge  it  was  a  German  firm  whose 
members  were  not  citizens  either  of  the  Transvaal  or  of 
the  Orange  Free  State.  They  showed  that  the  goods  were 
sold  on  four  months'  time  dating  from  November  3,  and 
consequently  that  their  loss  would  fall  upon  the  original 
shippers,  who  were  citizens  of  the  United  States.  The  fact 
was  pointed  out  that  additional  merchandise  amounting  to 

u  For.  Rel.,  1900,  p.  529 ;  Stone  to  Cridler,  Dec.  6,  1899. 
"For.  Rel.,  1900,  p.  530;  Hopkins  and  Hopkins  to  Hay,  Dec.  12, 
1899. 


273]  Trading  with  the  Enemy.  121 

five  thousand  dollars  had  been  purchased  for  the  Delagoa 
Bay  firm,  with  a  view  to  immediate  shipment,  but  would 
have  to  be  held  up  and  probably  lost  because  of  a  situation 
which  amounted  to  a  blockade  declared  by  Great  Britain 
over  a  neutral  port,  an  act  which  in  the  end  would  compel 
all  firms  in  Lorenzo  Marques  to  cease  buying  American 
goods.14 

It  was  alleged  by  the  captors  that  the  ship's  papers  were 
not  in  proper  form,  and  that  besides  the  flour  and  other 
foodstuffs  she  carried  a  consignment  of  lubricating  oil  for 
the  Netherlands  South  African  Railway.  This  consign- 
ment was  held  to  be  enemy's  property  since  it  was  con- 
sidered that  the  railway  belonged  to  the  Transvaal,  the 
specific  charge  against  the  ship  being  that  of  trading  with 
the  enemy.  The  fact  that  a  consignment  of  flour  was  billed 
to  a  Lorenzo  Marques  firm  but  labelled  "  Z.  A.  R."  created 
a  conclusive  presumption,  it  was  thought,  that  the  flour  was 
intended  for  the  Transvaal,  although  its  owners  claimed 
that  the  consignment  was  not  destined  for  the  belligerent 
Republic  but  for  local  consumption  at  Lorenzo  Marques.15 

Both  the  cargo  consigned  to  the  Transvaal  and  the  vessel 
herself  were  claimed  as  lawful  prize.  The  cargo,  it  was 
contended,  was  unprotected  since  it  was  enemy's  property, 
and  the  vessel,  by  trading  with  the  enemy,  had  violated  a 
regulation  which  rendered  it  confiscable.  Against  this  it 
was  urged  that  the  consignees  were  hostile  only  by  reason 
of  domicile,  and  that  neither  the  owners  of  the  ship  nor  the 
captain  had  any  intention  to  trade  with  the  enemy.  So  far 
as  intention  was  concerned,  it  was  shown  that  the  captain 
had  intended  to  pass  a  bond  at  Algoa  Bay,  one  of  the  ports 
of  call,  undertaking  not  to  deliver  the  goods  at  Delagoa  Bav 
without  the  permission  of  the  proper  authorities.  The  three 
judges  of  the  Supreme  Court  of  Cape  Colony  sitting  as  a 
prize  court  came  to  different  conclusions.  The  Chief  Jus- 

14  For.  Rel.,  1900,  pp.  530-533 ;  Flint  Eddy  and  Co.  to  Hopkins  and 
Hopkins,  Dec.  9,  1899,  and  Hopkins  and  Hopkins  to  Adee,  Dec.  15, 
1899- 

"  For.  Rel.,  1900,  pp.  538-539,  561. 


122          Neutral  Rights  in  the  Anglo-Boer  War.         [274 

tice  held  that  the  cargo  should  be  condemned  but  not  the 
ship.  One  opinion  was  that  neither  ship  nor  cargo  should 
be  condemned;  the  third  that  both  ship  and  cargo  should 
be  condemned.  There  were  thus  two  justices  to  one  for 
condemning  the  cargo  and  two  to  one  against  the  con- 
demnation of  the  ship.  The  cargo  was  consequently  con- 
demned and  the  ship  released.16 

Different  views  were  also  held  by  the  judges  with  refer-" 
ence  to  the  condemnation  of  the  goods  aboard  the  Mashona. 
The  Chief  Justice  held  that  the  intention  of  the  captain 
to  alter  the  destination  of  the  goods  was  sufficiently  estab- 
lished to  prevent  their  condemnation.  The  other  justices 
dissented  on  this  point.  They  held  that  the  goods  should 
be  regarded  in  prize  law  as  the  property  of  residents  of  the 
Transvaal,  and  that  such  ownership  did  not  seem  possible 
of  denial.  In  their  opinion  there  was  sufficient  reason  for 
condemning  the  goods  since  they  were  enemy's  property 
captured  on  the  high  sea  in  a  non-neutral  ship. 

This  view  obviously  implied  that  an  enemy  character  was 
impressed  upon  persons  resident  in  the  Transvaal  not  by 
nationality  but  merely  by  domicile.  England's  proclamation 
had  in  fact  forbidden  trade  with  the  enemy  or  with  those 
resident  upon  enemy  territory.  In  other  words,  those  re- 
siding in  hostile  territory  were  regarded  as  enemies  when 
there  was  a  question  of  trading  with  the  enemy.  The  same 
principle  was  applied  when  there  was  a  question  of  property 
in  goods  which  were  on  their  way  to  the  enemy's  territory, 
a  view  which  would  seem  reasonable  since  even  the  de  facto 
Government  of  a  hostile  region  could  possess  itself  of  goods 
which  had  been  allowed  to  enter  its  territory. 

With  regard  to  the  question  of  condemning  the  ship  the 
Chief  Justice  held  that  there  was  not  sufficient  evidence  to 
warrant  confiscation.  He  cited  the  case  of  the  Hook,17 
which  was  condemned  in  1801,  but  held  that  the  case  of 
the  Mashona  was  not  on  all  fours  with  the  conditions  of 

18  Decision  at  Cape  Town,  March  13,  1900,  reported  in  Cape  Times, 
March  14,  1000. 
"  i  C.  Rob.,  p.  200 ;  Moore,  Digest  of  Int.  Law,  Vol.  VII,  p.  534. 


275]  Trading  with  the  Enemy.  123 

that  decision.  He  took  the  view  that  the  case  of  the 
Mashona  was  more  nearly  analogous  to  the  cases  of  the 
Minna  and  the  Mercitrius,1*  and  consequently  declared  for 
the  restoration  of  the  ship. 

One  justice  concurred  on  the  main  point  at  issue,  namely, 
that  there  appeared  to  be  "  sufficient  proof  in  the  present 
case  of  an  honest  intention  to  pass  a  bond  at  Algoa  Bay 
not  to  take  the  goods  to  Delagoa  Bay  except  with  the  per- 
mission of  the  proper  authorities.  .  .  4  The  presumption 
of  an  intention  of  trading  with  the  enemy,  arising  from  the 
fact  that  the  ship  was  carrying  enemy's  goods  consigned 
to  Delagoa  Bay  and  destined  for  the  enemy's  country,  is 
entirely  rebutted  by  the  conduct  of  all  the  parties  interested 
in  the  ship.  The  claim  for  the  restitution  of  the  ship  must 
consequently  be  allowed."  19 

One  justice  dissented  from  this  opinion  and  argued 
that  "  as  soon  as  war  broke  out,  it  became  the  duty  of  the 
master  to  decline  to  convey  any  goods  which,  from  the 
papers  in  his  possession,  appeared  to  be  the  property  of 
enemy  consignees."  It  was  contended  by  this  justice  that 
"  his  contract  of  affreightment  could  not  be  fulfilled  "  in  any 
event,  and  he  should  have  been  aware  of  this  fact.  Further, 
it  was  urged  that  there  was  not  convincing  evidence  to 
"establish  that  there  was  no  intention  on  the  part  of  the 
master  of  the  ship  to  trade  with  the  enemy,  except  with  the 
permission  of  the  proper  authorities.  In  the  circumstances, 
such  a  defense  must  be  established  by  very  clear  proof ;  .  .  . 
although  there  is  no  reason  whatever  to  impute  any  disloyal 
intention,  or  mala  fides,  .  .  .  the  proof  of  non-liability  on 

"The  Minna  (Edwards  55,  n. ;  Roscoe,  English  Prize  Cases 
(1905),  p.  17,  note)  was  restored  by  Sir  William  Scott  in  1807  on 
the  ground  that  her  voyage  was  contingent  not  continuous.  The 
ship  had  been  captured  on  a  voyage  from  Bordeaux,  destined 
ultimately  to  Bremen,  but  with  orders  to  touch  at  a  British  port 
and  to  resume  her  voyage  if  permitted.  The  Mercurius  (Edwards 
53;  Roscoe  English  Prize  Cases  (1905),  p.  15)  was  restored  by  the 
same  judge  in  1808  on  the  ground  of  an  "honest  intention"  to 
procure  a  license  before  trading  with  the  enemy. 

"Decision  at  Cape  Town,  March  13,  1900,  Chief  Justice,  Mr. 
Justice  Buchanan  concurring. 


124         Neutral  Rights  in  the  Anglo-Boer  War,         [276 

this  ground  has  not  been  made  out."  On  the  contrary,  it 
was  insisted,  in  this  dissent  from  the  leading  opinion, 
"  there  seems  to  be  an  absence  of  proof  that  it  was  not  the 
intention  ...  to  deliver  these  goods  to  the  consignees 
unless  prevented  from  doing  so  by  some  competent  author- 
ity ;  and  this  cannot  be  regarded  as  equivalent  to  proof  that 
[the  master]  intended  to  apply  for  and  obtain  a  license 
before  engaging  in  intercourse  which,  in  the  absence  of  the 
license,  was  of  an  unlawful  character.  From  the  moment 
this  ship  left  New  York  harbour  .  .  .  she  was  liable  stricto 
jure  ...  to  seizure  and  condemnation;  as  she  was  still 
without  a  license  when  seized,  stricto  jure  the  liability 
remains."20 

The  fate,  however,  of  the  ship  itself  was  of  interest  to 
third  parties  only  in  so  far  as  its  disposition  involved  the 
rights  of  neutrals  whose  goods  were  on  board.  Great 
Britain's  action  in  seizing  her  own  ships,  or  ships  chartered 
by  her  own  subjects,  had  the  effect  of  placing  a  virtual 
blockade  upon  a  neutral  port,  for  few  but  English  ships 
carried  for  the  Transvaal  or  Orange  Free  State,  a  fact 
which  bore  with  especial  hardship  upon  American  shippers. 
The  "  detention  "  of  all  Delagoa  Bay  cargoes  in  British  bot- 
toms, provided  a  few  articles  were  found  consigned  to  the 
Transvaal,  was  a  practice  which  was  indignantly  protested 
against  by  all  neutral  shippers  upon  English  vessels.  The 
injustice  which  this  practice  worked  was  forcefully  brought 
home  to  the  United  States  by  an  apparent  disregard  of  the 
property  rights  of  innocent  neutrals  in  the  seizure  of  two 
other  ships  at  about  the  same  time  as  that  of  the  Mashona. 

THE  BEATRICE. — This  ship,  also  clearing  from  New  York, 
was  reported  in  December,  1899,  to  have  been  compelled  by 
the  English  naval  authorities  to  discharge  all  of  her  Delagoa 
Bay  cargo  into  lighters  at  East  London,  some  six  hundred 
miles  distant  from  Lorenzo  Marques.  It  was  pointed  out 
by  the  New  York  shippers  in  their  protest  addressed  to  Sec- 
retary Hay  at  Washington  that,  according  to  the  terms  of 

20  Decision,  March  13,  1900;  Mr.  Justice  Lawrence  dissenting. 


277]  Trading  with  the  Enemy.  125 

the  American  and  African  bill  of  lading,  the  steamship  line 
was  thus  relieved  of  any  further  responsibility,  since  the 
goods  were  at  the  risk  and  expense  of  the  consignees  after 
leaving  the  ship's  side.21 

The  shipments  had  been  made,  many  of  them  on  regular 
monthly  orders,  to  Portuguese  and  other  firms  in  Lorenzo 
Marques.  The  policy  of  insurance  did  not  cover  war  risks, 
and  the  company  holding  the  insurance  declared  that  it  was 
not  responsible  for  any  accident  which  might  occur  while 
the  merchandise  was  lying  in  lighters  or  hulks  at  a  port  of 
discharge  which  had  been  forced  upon  the  ship  by  the 
English  authorities.22  That  portion  of  the  cargo  of  the 
Beatrice  which  was  shipped  from  New  York  consisted  of 
large  consignments  of  flour,  canned  goods,  and  other  food- 
stuffs, but  included  also  a  consignment  of  lubricating  oil 
as  well  as  a  miscellaneous  assortment  of  light  hardware,  but 
none  of  the  articles  shipped  were  of  a  contraband  character 
in  the  usual  meaning  of  that  term.  Part  of  the  flour  was 
branded  Goldfields  and  part  was  labelled  Johannesburg, 
although  the  whole  consignment  was  marked  Delagoa  Bay. 
The  American  shippers  averred  that  although  they  regu- 
larly sold  flour  to  merchants  engaged  in  trade  in  various 
parts  of  South  Africa  they  "had  never  sold  flour  with 
direct  or  ulterior  destination  to  the  South  African  Republic, 
by  re-sale  or  otherwise."  They  made  affidavit  that  all  of 
their  sales  had  been  made  for  the  ordinary  uses  of  life,  and 
that  "  since  the  war  had  broken  out  they  had  made  no  sales 
of  flour  to  merchants  or  others  in  the  South  African 
Republic."23 

The  reason  assigned  in  the  official  report  of  the  English 

41  For.  Rel.,  1900,  p.  533,  Norton  and  Son  to  Geldart,  Dec.  14,  1899. 

22  According  to  the  terms  of  sale,  on  time,  the  shippers  pointed 
out  the  obvious  fact  that  unless  the  goods  were  delivered,  the 
Delagoa  Bay  consignees  as  well  as  others  would  refuse  to  honor 
the  drafts  drawn  upon  them  for  the  amount  of  the  purchase.  Con- 
sequently the  loss  would  fall  upon  the  American  shippers  should 
Great  Britain  persist  in  turning  aside  innocent  consignments  from 
their  neutral  port  of  destination. 

28  For.  Rel.,  1900,  p.  565 ;  Choate  to  Salisbury,  Jan.  13,  1900. 


126          Neutral  Rights  in  the  Anglo-Boer  War.         [278 

authorities  for  their  action  in  regard  to  the  Beatrice  was 
that  she  "  contained  large  quantities  of  goods,  principally 
flour,  destined  for  the  South  African  Republic,  which  the 
customs  authorities  at  East  London  required  should  be 
landed  at  that  port."  Since  the  cargo  was  stowed  in  such 
a  manner  as  to  make  it  impossible  to  land  goods  destined 
for  the  Republic  without  also  discharging  goods  intended 
for  Portuguese  East  Africa,  it  was  alleged  that  the  master 
and  agents  of  the  ship  preferred  to  land  the  whole  of  the 
cargo  at  East  London,  where  it  was  stowed  by  the  customs. 
But  it  was  admitted  that  the  removal  of  large  quantities 
of  the  goods  so  landed  had  been  permitted  from  time  to  time 
"  for  the  purposes  of  local  and  bona  fide  Portuguese  con- 
sumption." The  consignment  to  the  Netherlands  South 
African  Railway  was  held  to  be  enemy's  property  since  it 
was  considered  that  the  railway  was  owned  by  the  Republic. 
The  specific  reason  assigned  for  the  arrest  of  the  steamer 
was  "  that  the  Beatrice  being  a  British  ship,  was  by  carry- 
ing goods  destined  for  the  enemy's  territory,  illegally  en- 
gaged in  trade  with  the  enemy  in  contravention  of  Her 
Majesty's  proclamation  of  December  27,  iSo/)."24  The  ves- 
sel sailed  for  Calcutta  in  ballast  on  December  n,  1900. 

THE  SABINE. — On  February  22  the  last  of  the  ships  clear- 
ing from  New  York  for  South  African  ports  was  reported 
to  have  been  seized  at  Port  Elizabeth,  seven  hundred  and 
fifty  miles  from  Lorenzo  Marques.  The  Sabine  was  also  a 
British  ship  with  Mossel  Bay,  Algoa  Bay,  and  Durban 
among  her  ports  of  call,  and  carried  shipments  aggregating 
thirty  to  forty  thousand  dollars  in  value  made  by  New  York 
merchants  to  these  ports,  all  of  which  are  in  British  territory. 
But  in  addition  to  the  allegation  which  had  been  brought 
against  the  Maria,  Mashona,  and  Beatrice,  of  trading  with 
the  enemy,  it  was  suspected  that  the  Sabine  was  carrying 
actual  contraband  of  war.  The  latter  suspicion,  however, 

24  For.  Rel.,  1900,  p.  574;  Salisbury  per  Bertie  to  Choate,  Jan.  26, 
1900.  This  proclamation  was  not  retroactive  in  the  sense  that  it 
established  a  new  prohibition,  but  was  merely  explanatory  of  an 
accepted  restriction  upon  trade  with  the  enemy  by  British  subjects. 
Supra,  p.  116. 


279]  Trading  with  the  Enemy.  127 

was  not  pressed,  although  the  authorities  who  stopped  and 
examined  the  ship  upon  the  specific  charge  of  violating  a 
municipal  law  asserted  that  the  Sabine's  "  papers  were  not 
in  proper  form  and  that  goods  were  found  on  board  which, 
though  shipped  to  ports  this  side  were  marked  to  persons 
residing  in  Boer  territory."  The  case  was  viewed  by  the 
English  Government  "  as  a  very  suspicious  one  under  mu- 
nicipal law,  but,  as  the  evidence  was  not  very  complete,  they 
gave  the  vessel  the  benefit  of  the  doubt."25  After  a  short 
detention  both  ship  and  cargo  were  released. 

The  news  of  the  reported  seizures  aroused  considerable 
popular  feeling  in  the  United  States.  In  the  Senate  a  reso- 
lution was  introduced  which,  as  finally  amended,  read: 
"  Whereas  it  is  alleged  that  property  of  citizens  of  the 
United  States  not  contraband  of  war  has  been  lately  seized 
by  the  military  authorities  of  Great  Britain  in  and  near 
Delagoa  Bay,  South  Africa,  without  good  reason  for  the 
same,  and  contrary  to  the  accepted  principles  of  international 
law ;  and,  Whereas  it  is  alleged  that  property  of  citizens  of 
the  United  States  is  now  unjustly  detained  by  the  military 
authorities  of  Great  Britain,  in  disregard  of  the  rights  of 
the  owners  of  the  same ;  therefore,  Resolved  by  the  Senate 
of  the  United  States,  That  the  President  is  hereby  requested 
to  send  to  the  Senate,  if  not,  in  his  opinion  incompatible 
with  the  public  interests,  all  information  in  possession  of 
the  State  Department  relating  to  the  said  alleged  seizure  and 
detention,  and  also  to  inform  the  Senate  what  steps  have 
been  taken  in  requesting  the  restoration  of  property  taken 
and  detained  as  aforesaid."26 

The  final  clause  of  the  resolution  as  at  first  introduced 
was  stricken  out  after  a  discussion  as  to  whether  the  Secre- 
tary of  State  should  be  "  directed  "  or  the  President  be  "  re- 
quested" to  furnish  the  desired  information.  It  was  realized 
that  the  language  of  the  expunged  clause,  "  and  whether  or 
not  the  Department  has  informed  the  proper  British  au- 

*  For.  Rel.,  1900,  pp.  594-595- 

56  Cong.,  i  Sess.,  Jan.  17,  1900,  Record,  Vol.  33,  Pt.  i,  pp.  895, 
900 


128          Neutral  Rights  in  the  Anglo-Boer  War.         [280 

thorities  that,  if  said  detention  is  persisted  in,  such  act  will 
be  considered  as  without  warrant  and  offensive  to  the  Gov- 
ernment and  people  of  the  United  States,"  was  neither 
diplomatic  in  its  tone  nor  warranted  by  the  circumstances. 
Amicable  negotiations  were  still  in  progress,  and  those  ne- 
gotiations were  concerned  with  a  discussion  of  the  very 
question  which  would  thus  have  been  decided  in  the  affirma- 
tive by  the  Senate,  namely,  that  the  seizures  had  been  con- 
trary to  the  principles  of  international  law.  Consequently 
the  resolution  only  declared  that  it  was  "  alleged  "  that  Great 
Britain  had  departed  from  the  strict  principles  of  inter- 
national law,  and  it  was  not  intimated  that  her  persistence 
in  such  acts  would  probably  require  a  resort  to  more  forcible 
measures  than  mere  protest  on  the  part  of  the  United  States. 
A  motion  had  been  made  that  the  resolution  be  referred  to 
the  Committee  on  Foreign  Relations,  where  it  was  hoped  by 
certain  members  of  the  Senate  that  it  would  die  a  natural 
death,  an  end  which  would  have  been  deserved  under  the 
circumstances,  since  the  event  to  which  the  resolution  re- 
ferred was  then  in  the  course  of  diplomatic  consideration 
and  nothing  had  indicated  that  the  State  Department  would 
not  be  able  to  secure  protection  for  the  interests  of  all 
citizens  of  the  United  States  as  neutrals  during  a  recognized 
belligerent  contest.  An  unsettled  question  of  international 
law  was  at  issue  between  Great  Britain  and  the  United 
States,  and  was  being  dealt  with  as  fast  as  official  informa- 
tion reached  the  British  Foreign  Office  from  'the  scene  of 
the  occurrences  which  were  alleged  to  have  been  in  contra- 
vention of  established  principles.  Flour  or  any  other  food- 
stuff might  or  might  not  be  contraband  of  war  according 
to  the  particular  circumstances  of  the  case.  As  a  general 
rule  products  like  flour  shipped  from  a  neutral  State  are  not 
contraband,  but  it  is  always  a  question  of  fact  whether  the 
immediate  destination  of  such  flour  is  for  hostile  purposes, 
namely,  the  sustenance  of  a  belligerent  army.  If  flour  or 
foodstuffs  generally  were  so  destined  they  became  contra- 
band of  war  for  the  particular  case. 


28 1 ]  Trading  with  the  Enemy.  129 

Not  less  than  twenty  thousand  barrels  of  flour  had  been 
shipped  by  citizens  of  the  United  States  upon  the  three 
steamers,  Maria,  Mashona,  and  Beatrice,  and  the  proposer 
of  the  resolution  insisted  that  the  Senate  was  entitled  to 
know  in  what  manner  the  rights  of  the  United  States  were 
being  asserted  in  view  of  the  obvious  hardship  which  bona 
fide  neutral  shippers  had  thus  suffered.  He  urged  that  the 
seizure  of  property  of  citizens  of  the  United  States  by  one 
of  the  belligerents  was  "  a  thing  which  profoundly  affects 
the  American  people ;  it  affects  every  corn  grower,  every 
wheat  farmer,  the  owner  of  the  cattle  upon  a  thousand  hills, 
the  mill  man,  the  middleman,  everybody  who  is  interested  in 
producing  and  exporting  the  products  of  the  farm  and  the 
field  is  interested  in  this  question  and  is  entitled  to  know 
what  has  been  done  in  this  case." 27 

It  is  to  be  hoped  that  the  Senator's  constituents  read  this 
speech  in  the  next  morning's  papers,  for  otherwise  it  must 
go  down  in  history  as  a  burst  of  eloquence  wasted  upon  un- 
hearing  ears.  Had  he  been  able  to  pass  his  resolution  so 
worded  as  to  "direct"  the  Secretary  of  State  to  throw  open 
the  entire  files  of  the  Department's  foreign  correspondence 
for  the  Senate's  inspection,  instead  of  merely  "requesting" 
the  President  to  furnish  such  information  as  the  Senate  de- 
sired "  if  not,  in  his  opinion,  incompatible  with  the  public 
interest,"  the  result  would  have  been  practically  the  same. 
In  either  event  the  President  would  have  controlled  the  situa- 
tion, since  he  can  not  be  compelled  to  furnish  information  to 
the  Senate  when  he  considers  it  incompatible  with  the  public 
interest  to  do  so.  The  only  power  possible  to  be  exercised 
by  the  Senate  over  the  Executive  in  such  a  case  is  that  of  im- 
peachment. And  should  impeachment  be  possible  or  ad- 
visable the  process  could  be  carried  through  as  well  with  the 
words,  "  if  not,  in  his  opinion,  incompatible  with  the  public 
interest,"  out  of  a  resolution  as  with  those  words  in  such  a 
formal  request  of  the  Senate.28 

*  Hale  of  Maine,  56  Cong.,  i  Sess.,  Rec..  Vol.  33,  Pt.  i,  p.  896. 

"Teller  of  Colorado,  56  Cong.,  i   Sess.,  Record,  Vol.  33,  Pt.  i, 
p.  898. 

9 


130          Neutral  Rights  in  the  Anglo-Boer  War.         [282 

As  a  rule  it  is  unwise  for  the  Senate  to  interfere  while 
negotiations  are  pending  between  the  Executive  Depart- 
ment and  foreign  Governments  over  any  question  which  is 
at  issue.  Should  a  resolution  "requesting"  information 
upon  any  subject  be  deemed  necessary,  it  should  obviously 
be  addressed  to  the  President  and,  merely  for  the  sake  of 
courtesy,  with  the  usual  caveat.  It  should  not  be  "  directed  " 
to  the  Secretary  of  State,  for  that  official  stands  in  a  differ- 
ent relation  to  the  legislative  department  from  that  of  the 
secretaries  of  any  of  the  other  departments.  The  Secretary 
of  State  is  not  required  by  law  to  report  to  Congress  as  are 
all  the  other  Cabinet  officers.  He  has  been  exempted  from 
that  requirement  for  the  reason  that  his  duties  are  mainly 
diplomatic.  Negotiations  carried  on  with  foreign  Govern- 
ments upon  matters  of  a  delicate  character  might  involve 
serious  embarrassments  if  during  their  pendency  the  suc- 
cessive steps  were  reported  to  Congress.29  The  power  of 
the  President  in  consultation  with  the  Secretary  of  State  to 
deal  with  foreign  Governments  at  least  up  to  the  last  moment 
and  final  consent  of  the  Senate  has  made  it  possible  for  the 
United  States  to  preserve  a  fairly  uniform  foreign  policy. 
For  despite  the  repeated  changes  of  administration  and  of 
domestic  policies  the  general  foreign  policy  has  been  closely 
modeled  upon  the  expedient  course  of  absolute  neutrality 
laid  down  by  Washington.  Were  it  a  practical  requirement 
of  the  Constitution  that  all  foreign  correspondence  upon 
any  important  question  should  be  at  once  laid  before  the 
Senate,  it  is  reasonable  to  suppose  that  few  treaties  or  im- 
portant conventions  would  finally  be  ratified.  In  a  question 
of  international  law  such  as  that  under  discussion  between 
the  Governments  of  Great  Britain  and  the  United  States,  it 
would  have  been  extremely  unwise  during  the  negotiations 
for  the  Senate  to  interfere  in  any  way  with  the  regular 
course  of  diplomatic  intercourse  between  the  two  Govern- 
ments. 

""Platt  of  Connecticut,  56  Cong.,  i  Sess.,  Record,  Vol.  33,  Pt.  I, 
p.  899. 


283]  Trading  with  the  Enemy.  131 

In  the  end  the  Hale  Resolution  was  agreed  to,  but  nothing 
came  of  it,  for  the  State  Department  found  the  English 
Government  not  unwilling  to  make  an  equitable  settlement 
for  the  losses  which  citizens  of  the  United  States  had  in- 
curred as  a  result  of  the  seizures  of  British  ships  carrying 
American  goods  from  New  York  to  Delagoa  Bay. 

THE  LEGALITY  OF  THE  SEIZURES. 

While  the  fruitless  discussion  had  been  in  progress  in  the 
Senate  Secretary  Hay  had  been  dealing  with  the  question 
in  such  a  manner  as  to  safeguard  all  American  interests,  but 
at  the  same  time  with  a  full  consideration  of  the  necessity 
for  protesting  against  any  undue  extension  of  belligerent 
rights.  Immediately  following  the  seizure  of  the  British 
ships  clearing  from  New  York  with  American  goods  on 
board  he  had  requested  a  prompt  explanation.  In  his  in- 
structions to  Ambassador  Choate  he  said:  "You  will  bring 
the  matter  to  the  attention  of  the  British  Government  and 
inquire  as  to  the  circumstances  and  legality  of  the  seizures." ! 
And  later,  Mr.  Choate  was  further  instructed  to  ascertain 
"  the  grounds  in  law  and  fact "  upon  which  the  interference 
with  apparently  innocent  commerce  between  neutral  ports 
was  made,  and  to  demand  "  prompt  restitution  of  the  goods 
to  the  American  owners  if  the  vessels  were  seized  on  account 
of  a  violation  of  the  laws  of  Great  Britain,  as  for  trading 
with  the  enemy;  but  if  the  seizure  was  on  account  of  the 
flour  .  .  .  the  United  States  Government  can  not  recognize 
its  validity  under  any  belligerent  right  of  capture  of  pro- 
visions and  other  goods  shipped  by  American  citizens  to  a 
neutral  port."31  Mr.  Hay  pointed  out  the  fact  that  the 
American  shippers  had  produced  evidence  intended  to  show 
that  the  goods  were  not  contraband  in  character,  and  should 
this  prove  to  be  true  prompt  action  was  to  be  requested  on 
the  part  of  Great  Britain  in  order  to  minimize  as  far  as 
possible  the  damage  to  neutral  goods. 

80  For.  Rel.,  1900,  p.  534;  Hay  to  Choate,  Dec.  21,  1900. 
"For.  Rel.,  1900,  pp.  539-540;  Hay  to  Choate,  Jan.  2,  1900. 


132          Neutral  Rights  in  the  Anglo-Boer  War.         [284 

The  position  taken  by  the  English  Government  was  indi- 
cated on  January  10  in  a  note  handed  to  Mr.  Choate :  "  Our 
view  is  that  foodstuffs  with  a  hostile  destination  can  be 
considered  contraband  of  war  only  if  they  are  supplies  for 
the  enemy's  forces.  It  is  not  sufficient  that  they  are  capable 
of  being  so  used.  It  must  be  shown  that  this  was  in  fact 
their  destination  at  the  time  of  their  seizure."  32  Lord  Salis- 
bury verbally  added  that  the  British  Government  did  not 
claim  that  any  of  the  American  goods  were  actual  contra- 
band, but  that  the  ships  had  been  seized  on  a  charge  of  trad- 
ing with  the  enemy,  and  it  was  intimated  also  that  "  an 
ultimate  destination  to  the  citizens  of  the  Transvaal,  even  of 
goods  consigned  to  British  ports  on  the  way  thither,  might, 
if  the  transportation  were  viewed  as  one  continuous  voyage, 
be  held  to  constitute  in  a  British  vessel  such  a  trading  with 
the  enemy  as  to  bring  the  vessel  within  the  provisions  of  the 
municipal  law." 33  He  asserted  that  the  offense  was  cog- 
nizable by  a  prize  court  alone,  but  admitted  that  "  if  the 
owners  of  the  cargoes,  being  neutrals,  claim  that  they  are 
innocent,  the  cargoes  should  not  be  condemned  with  the 
ship  but  should  be  delivered  over  to  them." 3*  He  suggested 
that  the  ordinary  course  would  be  that  the  owners  should 
claim  the  cargoes  in  the  prize  court,  where  the  cases  would 
be  considered  and  properly  dealt  with  on  their  merits.35 
The  owners  would  be  requested,  he  said,  to  prove  that  they 
were  the  bona  fide  owners  by  submitting  bills  of  lading  and 
invoices  to  the  court.  It  was  intimated  that  the  American 
flour  which  had  been  removed  from  the  ships  was  not  de- 
tained in  any  way  but  was  perfectly  open  to  the  owners  to 
make  whatever  arrangements  they  pleased  for  its  immediate 
removal.  If  they  considered  themselves  aggrieved  by  the 

32  For.  Rel.,  1900,  p.  549;  Salisbury  per  Choate  to  Hay. 
88  For.  Rel.,   1900,  p.  609;  Hay  to  White,  March  20,   1900,  citing 
Choate's  despatch  of  April  26,  1900. 

« !°r- Rel" I900)  p- S4p- 

bee  Story,  Manual  of  Naval  Prize  Law  (1854),  pp.  46-71, 
where  the  practice  in  such  cases  before  prize  courts  is  stated;  in 
other  portions  of  the  work  the  claims  made  by  innocent  or  interested 
parties  are  considered. 


285]  Trading  with  the  Enemy.  133 

action  of  the  English  authorities  in  causing  the  flour  to  be 
landed  it  was  of  course  open  to  them  to  take  such  proceed- 
ings against  the  persons  concerned  as  they  were  advised 
might  be  appropriate  under  the  circumstances.36 

Mr.  Choate  at  once  retorted  that  in  such  a  case  the  United 
States  would  very  probably  send  the  bill  to  the  British  Gov- 
ernment. The  fact  was  pointed  out  that  the  operation  of 
the  English  law  did  not  lessen  the  obligation  incumbent  upon 
Great  Britain  to  restore  the  goods  to  their  bona  fide  neutral 
owners  or  to  the  neutral  consignees.  Although  the  permis- 
sion had  been  given  to  the  owners  to  come  and  take  their 
goods  at  the  ports  of  detention,  short  of  the  original  port 
of  destination,  this  permission  could  not  be  considered  as 
discharging  the  obligation  to  restore  the  goods.  The  rep- 
resentative of  the  United  States  insisted  that  nothing  short 
of  delivery  at  their  port  of  consignment  would  fulfill  the 
English  obligation  in  a  commercial  sense  such  as  to  give 
the  goods  the  value  intended.  It  was  clearly  shown  that 
under  the  application  of  the  English  municipal  law  the 
goods  in  question  became  as  inaccessible  to  their  owners 
for  all  the  purposes  of  their  commercial  adventure  "as  if 
they  had  been  landed  on  a  rock  in  mid-ocean."37  In  his 
criticism  of  the  English  position,  Mr.  Choate  said :  "  The 
discharge  from  the  vessel  and  landing  short  of  the  port  of 
destination  and  failure  to  deliver  at  that  port,  constitute 
wrongful  acts  as  against  all  owners  of  innocent  cargoes."38 
And  he  pointed  out  the  inconsistency  of  the  position  since 
it  was  not  claimed  that  any  but  British  subjects  could  be 
guilty  of  any  violation  of  the  English  prohibition  against 
trading  with  the  enemy.  He  was  accordingly  instructed  to 
insist  that  the  obligation  rested  upon  the  British  Govern- 
ment to  indemnify  the  neutral  owners  and  make  good  to 
them  all  damages  and  loss  sustained  by  the  treatment  to 
which  they  had  been  subjected. 

*  For.  Rel.,  1900,  p.  549,  Salisbury,  speaking  with  special  reference 
to  the  Mashona  and  Maria;  Choate  to  Hay,  Jan.  10,  1899. 

*  For  Rel.,  1900,  p.  585 ;  Choate  to  Salisbury,  Feb.  6,  1900. 
"For.  Rel.,  1900,  p.  586. 


134          Neutral  Rights  in  the  Anglo-Boer  War.         [286 

The  United  States  was  ready  to  admit  that  there  might 
have  been  cause  for  the  seizure  and  detention  for  the  pur- 
pose of  examination  before  a  prize  court  upon  the  suspicion 
of  trading  with  the  enemy.  But  the  decision  of  the  judges 
seemed  to  indicate  that  such  a  suspicion  was  not  founded 
upon  facts  which  could  be  produced  before  the  courts.  The 
vessels  were  released  upon  the  ground  that  they  had  not  in 
fact  traded  with  the  enemy  nor  intended  to  do  so  except 
with  the  express  or  implied  permission  of  the  British  Gov- 
ernment. In  view  of  the  causes  put  forward  for  the  seiz- 
ures and  of  the  reasons  stated  by  the  authorities  for  the  sub- 
sequent release  of  the  ships  it  would  seem  that  the  cargoes, 
"except  in  so  far  as  contraband  might  have  been  involved 
would  have  the  same  status  as  though  found  aboard  British 
ships  trading  between  neutral  ports  where  there  was  no 
question  of  a  belligerent  in  the  neighborhood  of  the  port 
of  detention."39  The  prize  court  did  decide  that  there  was 
no  question  of  contraband  involved,  and  the  American  rep- 
resentative pointed  out  the  fact  that  the  seizures  not  having 
been  made  or  justified  on  account  of  contraband  goods,  the 
only  effect  of  the  British  decision  would  seem  to  be  either 
that  Great  Britain  possessed  the  right  to  seize  neutral  and 
non-contraband  goods  aboard  British  vessels  trading  be- 
tween neutral  ports,  or  else  the  American  owners  of  such 
cargoes  would  be  entitled  to  full  compensation  for  their 
damages. 

Lord  Salisbury  in  his  reply  attempted  to  correct  what  he 
considered  the  misapprehension  which  underlay  the  state- 
ment of  alternatives,  namely,  that  neutral  and  non-contra- 
band goods  were  not  free  in  British  bottoms  between  neu- 
tral ports,  or  else  full  compensation  must  be  made  to  the 
owners  for  their  seizure.  It  was  asserted  that  the  British 
Government  had  neither  exercised  nor  claimed  any  such 
right  as  that  which  was  indicated,  nor  had  they  seized  neu- 
tral and  non-contraband  goods.  He  declared  that  the  goods 
were  not  seized.  Their  passage  to  Lorenzo  Marques  was 

39  For.  Rel.,  1900,  p.  6n;  Hay  to  Choate,  May  24,  1900. 


287]  Trading  with  the  Enemy.  135 

merely  interrupted,  and  by  this  interruption  they  were  de- 
tained only  to  the  extent  that  their  being  on  board  the  ship 
which  had  been  arrested  made  their  detention  unavoidable. 
It  was  further  alleged  that  had  the  prize  court  held  that 
the  arrest  of  the  ships  was  not  justified  they  would  "pre- 
sumably have  awarded  damages  against  the  captors  of  the 
ships  and  the  damages  would  presumably  have  been  so  cal- 
culated as  to  enable  the  ship  to  meet  the  claims  of  merchants 
arising  out  of  the  unjustified  interruption  of  the  voyage."40 
The  fact  was  alleged  that  the  court  had  not  so  held  and  that 
it  appeared  that  the  ships  should,  therefore,  bear  the  conse- 
quences of  the  arrest  and  meet  the  merchants'  claims.  By 
the  law  of  the  flag  under  which  the  ships  sailed  they  could 
not  carry  goods  destined  for  the  enemy.  If  they  shipped 
such  goods  they  should  bear  the  consequences.  Among 
those  consequences  was  the  delaying  of  the  goods  until  such 
time  as  they  could  be  placed  on  a  ship  that  could  legally 
carry  them  on  to  their  original  port  of  destination. 

The  result  of  such  a  decision  is  apparent.  The  American 
goods,  in  the  words  of  Mr.  Hay,  were  "as  inaccessible  to 
their  owners  as  if  they  had  been  landed  on  a  rock  in  mid- 
ocean,"  since  no  steamers  not  belonging  to  British  lines 
plied  between  the  ports  of  Cape  Colony  and  Delagoa  Bay. 
But  there  seemed  little  chance  of  securing  a  revision  of 
Great  Britain's  decision,  which  was  based  upon  the  principle 
that  she  might  deal  with  English  subjects  and  with  English 
ships  in  accordance  with  the  law  of  the  flag  under  which 
those  ships  sailed.  Mr.  Hay,  therefore,  only  endeavored 
to  secure  every  possible  guarantee  for  American  interests 
involved,  but  incidentally  emphasized  the  view  that,  although 
England  might  use  her  own  as  she  saw  fit  she  must  show 
just  ground  for  all  injuries  suffered  by  innocent  American 
shippers.  Instructions  were  sent  to  Mr.  Hollis,  the  United 
States  consul  at  Lorenzo  Marques,  that  he  should  investi- 
gate the  seizures  and  make  every  effort  to  protect  the  prop- 
erty of  American  citizens,  and  later  he  was  urged  to  ascer- 

40  For.  Rel.,  1900,  p.  618;  Salisbury  to  Choate,  July  20,  1900. 


136          Neutral  Rights  in  the  Anglo-Boer  War.         [288 

tain  the  facts  concerning  the  detention  of  American  flour  on 
board  the  ships  arrested  by  Great  Britain.41 

It  soon  developed  that  freight  had  been  prepaid  and  that 
the  drafts  drawn  against  the  various  shipments  from  New 
York  would  be  protested  for  non-payment  by  the  parties 
on  whom  they  had  been  drawn  at  Delagoa  Bay.42  Conse- 
quently the  title  to  the  property  in  such  cases  was  vested  in 
the  American  shippers,  and  they  urged  their  Government 
to  see  that  their  interests  were  protected  against  what  they 
considered  an  undue  extension  of  belligerent  rights  against 
ordinary  neutral  trade  from  one  neutral  port  to  another. 
Mr.  Hay  pointed  out  the  obvious  injustice  of  the  goods 
being  in  the  prize  courts  with  the  vessel,  even  granting 
that  the  ship  as  a  common  carrier  of  international  commerce 
had  violated  the  law  of  its  flag,  on  the  remote  possibility 
of  having  carried  for  the  enemy.  He  insisted  that,  al- 
though the  shippers  might  be  required  to  furnish  invoices 
and  bills  of  lading,  they  should  not  be  sent  to  the  prize 
court  for  their  property.  Lord  Salisbury,  however,  con- 
tended that  the  prize  court  had  complete  control  of  the 
situation,  and  that  any  neutral  shippers  who  were  inno- 
cent could  secure  the  release  of  their  goods  only  by  apply- 
ing to  the  court  with  the  proper  evidence  of  ownership. 
The  injustice  of  the  vigorous  enforcement  of  this  rule  of 
prize  law  was  obvious,  and  the  demand  was  made  that  the 
goods  should  be  released  by  order  of  the  proper  British 
law  officer  and  not  be  left  to  the  mercy  of  the  prize  court.43 
It  was  urged  that  since  the  ships  had  been  seized  because 
of  a  violation  of  the  municipal  law  of  Great  Britain,  for 
trading  with  the  enemy,  and  since  the  seizure  and  detention 
of  the  flour  and  other  goods  was  only  incidental  to  the 
seizure  of  the  ships,  the  flour,  to  which  no  such  offense 
could  be  imputed,  could  not  under  the  circumstances  be 
admitted  to  be  subject  to  capture  because  not  contraband 

41  For.  Rel.,  1900,  p.  538;  Hay  to  Hollis,  Dec.  28,  1899. 
12  For.  Rel.,  1900,  p.  540 ;  Toomey  to  Hay,  Jan.  3,  1900. 
43  For.  Rel.,  1900,  p.  543;  Choate  to  Hay,  Jan.  5,  1900. 


289]  Trading  with  the  Enemy.  137 

of  war.  Upon  these  grounds  prompt  restitution  to  the 
American  owners  was  demanded.44 

The  view  of  the  Department  was  that  nothing  seemed 
to  justify  the  seizure  of  the  American  goods,  for  to  all 
intents  and  purposes  they  were  seized  although  it  was  con- 
sidered by  Great  Britain  that  they  had  merely  been  detained 
as  an  incident  of  the  seizure  of  the  ships  on  which  they  were 
carried.  Since  the  flour  was  sold  delivered  at  Delagoa  Bay 
it  was  therefore  the  property  of  the  United  States  shippers 
until  the  obligation  of  delivery  was  fulfilled  irrespective  of 
the  drafts  made  against  it  on  Delagoa  Bay.  Upon  the  re- 
turn of  these  drafts  unpaid  the  flour  was  left  in  a  critical 
position  even  if  released.45 

It  was  clearly  shown  that  the  flour  had  been  sold  in  the 
regular  course  of  business  as  for  a  number  of  years  past, 
shipments  being  made  of  so  many  bags  each  month  to  their 
regular  users  who  anticipated  their  ordinary  requirements. 
The  consignees,  it  was  urged  by  the  American  shippers, 
were  reputable  merchants  in  Delagoa  Bay,  and  the  con- 
signments were  not  of  an  unusual  character  but  were  a 
part  of  the  ordinary  commerce  with  the  East  coast.46  It 
was  admitted  that  certain  of  the  consignments  had  been 
to  residents  of  Johannesburg,  but  it  was  at  the  same  time 
asserted  that  the  consignees  were  legitimate  flour  merchants 
who  were  not  contractors  for  the  Transvaal  Government 
at  the  time  the  purchases  were  made.47 

The  Pennsylvania  Milling  and  Export  Company  sug- 
gested that  possibly  their  shipments  had  been  confused  with 
those  of  an  English  firm,  Collier  and  Sons,  of  Bristol. 
It  was  alleged  to  be  a  notorious  fact  that  this  firm  had  made 
large  shipments  of  flour  to  the  Transvaal  Government; 
that  Arthur  May  and  Company  were  the  agents  of  the  firm 
in  the  Republic,  and  that  the  Bristol  firm  had  shipped  on 
the  same  steamers  on  which  American  goods  were  carried. 


44  For.  Rel.,  1900,  p.  543 ;  Choate  to  Salisbury,  Jan.  4,  1900. 
**  For.  Rel.,  1900,  p.  548 ;  Toomey  to  Hay.  Jan.  10,  1900. 
48  For.  Rel.,  1900,  p.  567;  Choate  to  Salisbury,  Jan.  15,  1900. 
"For.  Rel.,   1890,  p.  584.      Affidavit  of  A.  J.  Toomey,  President 
of  the  Penn.  Milling  and  Export  Co.,  Jan.  23,  1900. 


138          Neutral  Rights  in  the  Anglo-Boer  War.         [290 

A.  J.  Toomey,  President  of  the  Pennsylvania  firm,  in  alleg- 
ing these  facts  pointed  out  that  he  mentioned  only  what 
was  well  known  in  shipping  circles  and  did  so  merely  to 
establish  the  fact  that  there  had  been  no  wrong  intent  with 
reference  to  his  shipments.  He  urged  that  the  question  of 
the  justice  of  indemnification  should  be  settled,  leaving 
the  respective  rights  of  consignors  or  consignees  to  the 
proceeds  to  be  settled  afterward.48 

Mr.  Choate,  in  carrying  out  instructions  received  from 
Washington,  insisted  that  where  the  ship  was  seized  and 
taken  into  port  on  the  charge  of  trading  with  the  enemy, 
and  where  the  flour  was  not  held  as  contraband,  and  was  not 
claimed  to  be  contraband,  and  under  the  circumstances  could 
not  be  involved  in  the  specific  charge  against  the  ship,  it 
was  manifestly  a  great  hardship  for  the  owners  of  the  flour 
to  be  compelled  to  go  into  the  prize  court  at  a  port  short 
of  the  original  destination  even  for  the  purpose  of  proving 
their  ownership,  which  he  insisted  would  involve  costs  and 
damages  for  the  detention  and  possible  deterioration  in 
value.49  It  was  intimated  that  aside  from  the  pecuniary 
features  of  the  situation  it  was  of  primary  importance  to 
insist  upon  the  principles  involved,  with  a  view  to  pre- 
venting an  extension  of  belligerent  rights  to  the  detriment 
of  all  neutral  commerce  in  time  of  war.  Emphasis  was 
therefore  placed  upon  the  point  that  evidence  must  be  shown 
that  the  goods  were  really  for  the  supply  of  the  enemy's 
forces  and  that  this  was  in  fact  their  destination  at  the  time 
of  their  seizure.  The  fact  was  pointed  out  that  otherwise 
the  action  of  the  British  authorities  seemed  to  imply  the 
right  to  exercise  an  embargo  on  the  sale  and  delivery  of 
non-contraband  goods  in  the  ordinary  course  of  trade  with 
the  people  of  the  Republics.  It  was  intimated  that  this  was 
inconsistent  with  the  view  of  contraband  expressed  by  the 
English  Government,  and  wholly  inadmissible  from  the 
point  of  view  of  the  United  States.50 

48  For.  Rel.,  1900,  p.  589;  Toomey  to  Hay,  Feb.  12,  1900. 

49  For.  Rel.,  1900,  p.  566 ;  Choate  to  Salisbury,  Jan.  13,  1900. 
80  For.  Rel.,  1900,  p.  578;  Choate  to  Salisbury,  Jan.  29,  1900. 


291]  Trading  with  the  Enemy.  139 

The  argument  was  presented  that  the  British  Government 
had  seized  flour  shipped  to  buyers  at  Delagoa  Bay  and  had 
prevented  it  from  reaching  that  point  in  time  to  meet  a 
good  market.  Consequently,  in  view  of  the  fact  that  it 
was  not  sold  for  any  purposes  hostile  to  Great  Britain,  it 
\vas  urged  that  the  latter  should  not  be  allowed  to  con- 
sider herself  relieved  of  any  responsibility  for  indemnity  or 
direct  loss  assumed  by  the  shippers,  or  for  any  indirect  loss 
for  which  the  shippers  might  have  to  compensate  the  buyers 
on  account  of  the  diversion  and  detention.  It  was  the 
opinion  of  the  United  States  that  the  mere  release  of  the 
flour  to  qualified  owners  did  not  meet  the  obligation  in  the 
case  because  the  owners  could  not  possibly  take  the  delivery 
of  the  flour  owing  to  the  obstacles  of  war  at  the  points 
where  the  goods  lay.  Even  if  they  could  do  so  they  would 
naturally  suffer  considerable  loss  by  the  condition  of  the 
market  and  by  any  diminution  in  value  that  might  have 
occurred  to  the  flour  through  climatic  deterioration. 

The  American  State  Department,  therefore,  suggested  as 
the  only  equitable  plan  apparent  under  the  circumstances 
that  Great  Britain  buy  the  flour  and  other  innocent  goods 
at  their  invoice  price  and  pay  over  the  proceeds  of  the  pur- 
chases to  those  persons  who  could  prove  a  just  claim  for 
its  value.  An  additional  sum  was  also  asked  as  "  reason- 
able compensation  "  for  loss  of  market  and  other  losses  that 
might  have  been  suffered  by  American  interests.81  In  other 
words,  the  English  Government  should  use  the  flour,  pay  the 
costs  and  indemnify  the  owners  reasonably,  since  the  latter 
were  entirely  innocent  and  had  depended  upon  the  usual 
rights  and  immunities  of  neutral  shippers  in  time  of  war. 
The  fact  was  pointed  out  that  the  situation  was  causing  an 
uncertainty  and  hesitancy  in  business  circles  which  was 
detrimental  to  all  American  interests.  Although  a  number 
of  the  consignments  were  being  delivered  at  Delagoa  Bay, 
presumably  by  English  ships,  it  was  alleged  that  the 
seizures  and  the  unforeseen  attitude  of  Great  Britain  had 

81  For.  Rel.,  1900,  p.  582 ;  Toomey  to  Hay,  Jan.  23,  1900. 


140          Neutral  Rights  in  the  Anglo-Boer  War.         [292 

compelled  all  later  shipments  to  go  by  way  of  Hamburg 
or  Bordeaux  when  seeking  the  ports  of  South  Africa  in  the 
way  of  ordinary  neutral  commerce  in  order  to  avoid  using 
British  bottoms  as  a  means  of  transportation.  Many  of  the 
drafts  had  been  returned  unpaid  and  others  were  expected 
in  due  course,  and  whether  paid  or  not  they  would  finally 
have  to  be  lifted  by  the  shippers  from  the  United  States, 
since  they  were  the  final  recourse.52  All  delay  tended  to 
reduce  the  value  of  the  goods,  which  were  perishable,  on 
account  of  the  climate  and  because  of  Cape  Colony  duties 
and  loss  of  market. 

The  offer  was  made  by  several  of  the  American  shippers 
to  sell  to  Great  Britain  for  the  value  of  the  goods  at  the 
port  of  original  destination  at  the  time  they  would  have 
arrived  there  had  the  voyage  not  been  interrupted.  And 
the  American  representative  urged  that  it  would  be  advis- 
able for  all  American  shippers  who  were  interested  to  agree 
to  sell  upon  the  same  terms  with  a  view  to  securing  an 
arrangement  which  would  include  all  neutral  American 
property.  He  suggested  that  where  the  title  to  property 
was  doubtful  both  shipper  and  buyer  might  unite  in  the 
sale,  since  this  course  was  preferable  to  incurring  ques- 
tions as  between  consignors  and  consignees  in  the  prize 
courts.63 

The  English  Government  had  naturally  been  unwilling 
to  buy  at  current  prices  for  the  reason  that  prices  were 
doubled  at  Delagoa  Bay  after  the  seizures,  but  it  was  consid- 
ered that  the  price  there  on  the  day  of  the  seizures  was  not 
unreasonable.  Great  Britain  was  willing  to  buy,  but  em- 
phasized the  point  that  the  alleged  owners  must  prove  their 
title  to  ownership  beyond  a  doubt  as  an  essential  condition 
of  the  arrangement,  since  the  Government  could  not  incur 
the  risk  of  paying  one  man  only  to  have  another  appear 
later  and  prove  that  he  was  the  real  owner.  Fears  were 
expressed  that  the  question  of  ownership  would  cause 
trouble,  although  the  regular  shipping  documents  by  which 

62  For.  Rel.,  1900,  p.  540 :  Hay  to  Choate,  Jan.  10,  1900. 
"For.  Rel.,  1900,  p.  551;  Choate  to  Hay,  Jan.  12,  1900. 


293]  Trading  with  the  Enemy.  141 

the  goods  had  gotten  into  the  ships,  it  was  thought,  should 
be  sufficient  proof  provided  the  joint  consent  of  consignors 
and  consignees  could  be  secured.64 

The  English  view  had  been  that  the  whole  cargo  was 
included  in  the  libel  for  trading  with  the  enemy  declared 
against  the  ship,  but  the  plea  of  the  American  owners  was 
heard,  that  the  rules  of  prize  procedure  should  not  be  so 
rigorously  enforced  in  the  present  instances,  since  such  an 
interpretation  would  have  led  to  obvious  injustice  by  requir- 
ing innocent  American  owners  to  appear  before  the  court 
to  prove  the  title  to  their  property.55  Such  a  requirement, 
it  was  realized,  would  have  led  to  difficulties  of  an  almost 
unsurmountable  character  under  the  circumstances.  Claim- 
ants would  have  had  to  submit  evidence  showing  a  bona 
fide  American  citizenship  and  an  actual  title  to  the  owner- 
ship of  the  goods  at  the  time  they  were  seized.  Within  the 
rules  of  prize  jurisdiction  the  consignee  on  whose  account 
and  at  whose  expense  the  goods  were  shipped  is  considered 
the  owner  of  such  goods  during  the  voyage.  And  as  a 
corollary  the  further  rule  is  suggested  that  the  right  to 
claim  damages  caused  for  an  illegal  seizure  would  be  in  the 
owner.  In  the  prize  court  the  delay  caused  by  all  such 
questions  as  between  consignor  and  consignee  would  have 
been  almost  endless. 

The  question  might  naturally  have  arisen  whether  there 
could  be  any  basis  for  a  claim  for  indirect  loss  sustained  by 
an  American  shipper  growing  out  of  the  sale  on  credit  to 
citizens  of  the  Transvaal.  It  might  be  a  question,  too, 
whether  the  consignor  might,  notwithstanding  the  seizures, 
be  able  to  recover  at  law  the  full  contract  price  of  the  goods 
shipped  prepaid  to  the  consignee,  and  if  so,  whether  the 
seizure  could  be  considered  legally  as  a  wrong  against  the 
American  consignor.  And  even  granting  that  the  latter 
were  unable  to  recover  at  law  from  the  consignee,  the  ques- 
tion would  still  remain  whether  under  all  the  circumstances 
such  inability  on  the  part  of  the  American  consignor  could 

84  For.  Rel.,  1900,  pp.  553,  554,  579. 

"For.  Rel.,  1900,  p.  579;  Choate  to  Hay,  Feb.  2,  1900. 


142          Neutral  Rights  in  the  Anglo-Boer  War.         [294 

be  legally  imputable  to  the  act  of  the  British  Government 
in  making  the  seizure.  The  question  might  also  have  arisen 
where  an  agent  had  bought  for  the  Transvaal  Government 
on  credit,  so  that  the  title  passed  when  the  goods  went  on 
board  and  the  goods  were  discovered  to  have  been  contra- 
band, whether  an  American  shipper  might  not  appear  to 
have  been  privy  to  the  real  character  of  the  purchases.  In 
such  a  case  the  United  States  Government  could  hardly  have 
championed  the  cause  of  a  party  who  had  shipped  contra- 
band. A  prize  court  is  filled  with  pitfalls  of  the  kind,  but 
the  diplomacy  of  Secretary  Hay,  backed  by  the  prestige  of 
the  United  States  and  a  reciprocal  feeling  of  friendship 
between  the  two  nations,  was  able  to  avoid  all  such  questions 
by  inducing  Great  Britain  to  agree  upon  a  settlement  with- 
out compelling  the  claimants  to  go  into  the  prize  court. 
Although  it  was  pretty  well  ascertained  that  no  actual  con- 
traband in  the  usual  sense  of  the  term  had  been  carried 
from  America  by  the  ships  which  were  seized,  difficult 
questions  were  thus  avoided  as  between  liens  and  general 
ownerships  which  might  have  arisen  had  American  shippers 
been  compelled  to  go  into  court. 

It  is  not  a  universal  rule  where  the  shipper  has  not  been 
paid  for  his  goods  that  the  property  is  still  in  him,  so  as  to 
constitute  him  the  owner  in  a  prize  court,  or  for  the  pur- 
poses of  sale.  By  the  terms  of  sale  and  shipment  he  may 
not  have  retained  a  lien  on  the  goods.  But  in  any  case  as 
a  rule  the  title  of  the  absolute  owner  prevails  in  a  prize 
court  over  the  interests  of  a  lien  holder,  whatever  the  equi- 
ties between  consignor  and  consignee  may  be.56  Conse- 
quently the  policy  adopted  by  Secretary  Hay  in  demanding 
that  Great  Britain  should  settle  with  all  American  shippers 
on  an  equitable  basis  without  forcing  them  to  take  their 
chances  in  a  prize  court  was  the  wisest  course  that  could 
have  been  pursued. 

In  the  final  arrangement  Great  Britain  admitted  that  the 
American  goods  had  not  been  liable  to  seizure  except  as  a 

The  Winnifred,  Blatch.  Prize  Cases,  2,  cited  2  Halleck,  Inter- 
national Law,  Engl.  Ed.  (1893),  392. 


295]  Trading  with  the  Enemy.  143 

result  of  the  libel  attaching  to  the  ships.  But  any  claims 
for  damages  due  to  the  owners  of  the  cargoes  on  account 
of  the  failure  of  the  vessels  to  deliver  at  the  port  mentioned 
in  the  freight  contract,  it  was  asserted,  should  be  made 
against  those  who  entered  into  or  became  responsible  for 
the  execution  of  the  contract  for  the  delivery  which  they 
failed  to  perform,  and  the  assumption  that  such  damages 
could  be  sustained  at  law  would  depend  on  the  terms  of  the 
contract  of  carriage.  The  English  Government,  however, 
did  not  admit  that  it  was  in  any  way  liable  for  damages  to 
the  owners  of  the  flour  and  other  goods,  since  their  deten- 
tion was  due  entirely  to  the  circumstance  that  the  ships 
were  not  able  to  complete  their  voyages,  and  the  fact  that 
they  could  not  complete  their  voyages  was  due  to  the  cir- 
cumstance that  such  voyages  were  illegal  by  the  law  of  the 
flag  under  which  they  were  sailing.57 

Although  the  financial  settlement  which  Great  Britain  was 
willing  to  make  was  accepted  by  the  United  States,  this 
acceptance  did  not  imply  an  acquiescence  in  the  view  ex- 
pressed by  the  English  Government  with  reference  to  the 
conditions  under  which  flour  and  other  foodstuffs  might 
become  contraband  of  war,  nor  in  the  doctrine  of  contin- 
uous voyages  as  applied  by  Great  Britain  to  trading  with 
the  enemy.  It  was  preferred  at  Washington  to  follow  the 
usual  rule  and  avoid  passing  upon  hypothetical  cases  until 
occasion  had  called  them  into  actual  existence.  The  prob- 
lem which  had  been  before  the  Department  of  State  was, 
not  to  force  Great  Britain  to  declare  herself  finally  upon 
broad  questions  of  international  law,  nor  to  express  the 
final  attitude  of  the  United  States  upon  questions  which 
were  not  immediately  at  issue,  but  to  meet  the  demands  of 
American  shippers  and  secure  their  immediate  interests  by 
some  equitable  agreement  with  Great  Britain.  The  arrange- 
ment agreed  upon,  therefore,  met  only  the  necessity  of  the 
case  immediately  in  view.  The  United  States  Consul-Gen- 
eral  at  Cape  Town  was  to  arrange  with  Sir  Alfred  Milner, 

"For.  Rel.,  1900,  pp.  604-605;  Salisbury  to  Choate,  March  3,  1900. 


144         Neutral  Rights  in  the  Anglo-Boer  War.         [296 

the  British  High  Commissioner  in  South  Africa,  for  the 
release  or  purchase  by  the  British  Government  of  any  goods 
owned  by  citizens  of  the  United  States,  which,  if  purchased, 
were  to  be  paid  for  at  the  price  they  would  have  brought 
at  the  port  of  destination  at  the  time  they  would  have  ar- 
rived there  had  the  voyage  not  been  interrupted. 

Against  certain  articles,  especially  the  oil  consigned  to 
the  Netherlands  South  African  Railway,  an  allegation  of 
enemy's  property  was  justly  made  and  the  oil  confiscated. 

In  the  end  most  of  the  American  claims  were  withdrawn 
or  paid  in  full.  In  the  former  event  the  American  owners 
threw  the  burden  of  proof  of  ownership  upon  the  consignees, 
who  were  instructed  to  present  their  claims  through  their 
respective  governments.  But  it  should  be  noted  that  in 
acceding  to  the  American  demands  by  purchasing  the  goods, 
the  British  Government  emphasized  the  fact  that  the  act 
was  purely  ex  gratia  on  the  part  of  England.  The  British 
representative  clearly  stated  that  the  goods  had  been  legally 
detained  and  that  it  was  open  for  the  owners  to  come  and 
take  them  upon  proof  of  ownership  before  the  prize  court. 
It  was  pointed  out  that  the  fact  that  none  but  British  ships 
ran  between  Cape  Colony  and  Delagoa  Bay,  although  an 
unfortunate  circumstance,  was  one  which  could  hardly  be 
held  to  be  a  fault  of  the  English  Government.  The  enforce- 
ment of  the  English  law  was  the  right  of  Great  Britain  no 
matter  upon  whom  the  inconvenience  might  happen  to  fall. 
Lord  Salisbury  said :  "  It  must  be  distinctly  understood  that 
these  payments  are  made  purely  ex  gratia  and  having  regard 
to  the  special  circumstances  of  this  particular  case.  No 
liability  is  admitted  by  Her  Majesty's  Government  either 
to  purchase  the  goods  or  to  compensate  .  .  .  for  the  losses 
or  for  the  expenses  .  .  .  incurred."58  The  view  held  by 
the  English  statesman  was  that  Great  Britain's  concession 
in  these  cases  should  not  serve  as  a  precedent  in  the  future. 

The  attitude  which  Great  Britain  had  assumed  with  ref- 
erence to  the  different  seizures  was  generally  considered 

88  For.  Rel.,  1900,  p.  618;  Salisbury  to  Choate,  July  20,  1900,  with 
reference  to  the  Beatrice. 


297]  Trading  with  the  Enemy.  145 

a  menace  to  neutral  commercial  interests  should  the  British 
position  be  accepted  as  a  precedent  for  similar  cases  that 
might  occur.  The  danger  of  such  a  precedent  had  been 
realized  by  Secretary  Hay  and  throughout  the  negotiations 
he  had  dwelt  upon  the  fact  that  while  the  protection  of 
American  interests  was  the  end  immediately  sought,  the 
principles  which  underlay  the  disposition  of  the  particular 
cases  were  of  the  greater  importance. 

Lord  Roseberry,  too,  called  attention  to  the  danger  of 
the  precedent  should  England  determine  to  treat  food- 
stuffs in  general  as  contraband  of  war.  It  was  pointed  out, 
however,  that  in  the  seizures  of  foodstuffs  near  Delagoa 
Bay  the  question  of  contraband  did  not  necessarily  arise, 
since  all  trade  with  the  enemy,  even  in  articles  the  most 
innocent,  was  forbidden  under  heavy  penalty.  The  seizure 
of  certain  classes  of  foodstuffs  as  of  a  contraband  character 
did  not  of  necessity  involve  the  principle  of  treating  all 
foodstuffs  as  contraband  of  war.  The  English  view  was 
that  it  had  long  been  recognized  that  a  belligerent  might 
discriminate  between  foodstuffs  obviously  intended  for  the 
commissariat  of  an  army  in  the  field  and  foodstuffs  which 
might  be  properly  imported  for  the  use  of  the  non-combatant 
population. 

The  consensus  of  opinion,  however,  seems  to  be  that 
while  there  may  be  reasonable  ground  for  including  tinned 
or  canned  meats  and  the  like  in  the  former  category,  flour 
naturally  belongs  to  the  latter  class,  and  it  has  been  pointed 
out  that  neither  the  British  Government  nor  any  other  has 
the  power  of  treating  what  it  pleases  as  contraband  without 
reference  to  the  prize  court,  with  which  alone  the  decision 
rests.  The  prize  courts  of  all  countries  have  held  at  dif- 
ferent times  that  foodstuffs  under  certain  circumstances  are 
contraband,  as,  for  instance,  where  they  are  intended  for  the 
supply  of  a  belligerent  garrison  as  well  as  in  less  obvious 
cases,  but  any  decision  which  considered  foodstuffs  gen- 
erally as  contraband  would  be  disquieting  to  all  neutral 
interests. 


10 


146         Neutral  Rights  in  the  Anglo-Boer  War.         [298 

One  writer  has  asserted  that  such  an  innovation  would 
not  be  alarming  to  Great  Britain  as  long  as  she  remained 
predominant  at  sea,  since  the  more  effectual  her  sea  power 
were  declared  to  be  in  preventing  sustenance  from  going 
over  sea  to  her  enemy  the  better  it  would  be  for  English 
predominance.  It  is  believed  by  this  writer  that  during  the 
existence  of  this  supremacy  at  sea  she  would  be  able  to  pro- 
tect the  passage  of  general  foodstuffs  from  foreign  coun- 
tries to  her  own  ports.  He  concludes,  however :  "Of  course 
if  we  lose  our  predominance  at  sea  it  is  another  matter.  But 
then,  e  finita  la  Musica."59 

The  acceptance  of  the  principle  that  foodstuffs  are  con- 
traband of  war,  it  need  hardly  be  said,  is  not  even  a  remote 
probability  except  under  very  exceptional  circumstances 
where  they  are  for  the  immediate  supply  of  the  enemy's 
army  or  navy,  and  in  most  cases  of  this  kind  they  can  usually 
be  confiscated  as  enemy's  property  without  a  direct  implica- 
tion of  a  distinctly  contraband  character.  In  other  words, 
the  use  for  which  they  are  intended  may  give  reasonable 
ground  for  the  conclusive  presumption  that  they  are  for  the 
enemy's  immediate  supply,  whether  the  title  to  property  in 
them  vests  in  the  enemy  or  in  some  other  agency,  and  the 
last  question  is  always  to  be  decided  by  the  prize  court  of  the 
particular  country  which  has  made  the  seizure.  The  decision 
should  be  based  upon  a  careful  examination  of  the  evidence 
which  is  submitted  to  the  court,  and  not  presumed  from  the 
fact  that  the  political  power  has  exercised  the  belligerent 
right  of  visit,  search  and  detention.  The  final  decision  of 
confiscation  rests  with  the  prize  court. 

By  way  of  recapitulation  it  may  be  pointed  out  that  the 
goods  seized  or  detained  by  the  English  authorities  in  South 
African  waters  were  shipped  by  American  merchants  and 
manufacturers,  many  of  them  on  regular  monthly  orders  to 
alleged  reputable  merchants  in  Lorenzo  Marques,  Delagoa 
Bay,  in  Portuguese  territory.  Certain  consignments  were 
intended  for  alleged  reputable  firms  in  Johannesburg,  South 

B9Thos.  Gibson  Bowles,  Jan.  4,  1900.     For.  Rel.,  1900,  p.  546. 


299]  Trading  with  the  Enemy.  147 

African  Republic.  The  articles  composing  the  cargoes  of 
the  ships  were  of  the  general  character  of  foodstuffs,  chiefly 
flour,  canned  meats,  and  other  food  materials.  Lumber, 
hardware  and  various  miscellaneous  articles  generally  con- 
sidered innocent  in  character  were  also  included.  There 
was  a  consignment  of  lubricating  oil  to  the  Netherlands 
South  African  Railway,  the  latter  company  held  to  be  the 
property  of  the  Transvaal  Government,  and  a  like  consign- 
ment to  the  Lorenzo  Marques  Railway,  a  Portuguese  con- 
cern. At  first  the  seizures  which  occurred  at  points  between 
Cape  Colony  and  Delagoa  Bay  were  supposed  to  have  been 
made  on  account  of  contraband.  Later  Great  Britain  de- 
clared that  the  ships  had  been  seized  because  of  the  violation 
of  a  municipal  ordinance  forbidding  British  subjects  to 
trade  with  the  enemy.  The  Mashona,  Beatrice  and  Sabine 
were  British  ships  sailing  under  the  English  flag.  The 
Maria  was  a  Dutch  vessel  sailing  under  the  flag  of  Holland, 
but  was  supposed  by  the  English  authorities  to  have  been 
under  charter  to  an  English  firm.  In  the  latter  case  the 
ship  would  have  been  liable  to  the  English  law,  but  for  the 
mistake  the  owners  of  the  ship  as  well  as  the  owners  of  the 
cargo  were  indemnified  by  the  English  Government.  The 
seizure  of  the  cargoes  of  the  British  ships  was  declared  to 
have  been  merely  an  unavoidable  incident  of  the  seizure  of 
the  alleged  guilty  ships.  Compensation  was  made  to  Ameri- 
can shippers  by  the  purchase  of  the  goods.  The  consign- 
ment of  oil  to  the  Netherlands  South  African  Railway  was 
confiscated  as  enemy's  property. 

The  views  of  Great  Britain  and  the  United  States  were 
divergent  with  reference  to  the  principle  of  treating  food- 
stuffs as  contraband.  Rather  as  an  obiter  dictum  the  former 
declared :  "  Foodstuffs  with  a  hostile  destination  can  be  con- 
sidered contraband  of  war  only  if  they  are  supplies  for 
the  enemy's  forces.  It  is  not  sufficient  that  they  are  capable 
of  being  so  used ;  it  must  be  shown  that  this  was  in  fact 
their  destination  at  the  time  of  the  seizure." 80 

Tor.  Rel,  1900,  p.  555. 


148          Neutral  Rights  in  the  Anglo-Boer  War.         [300 

The  United  States  declared  that  the  validity  of  the 
right  to  seize  goods  on  the  ground  of  contraband  could  not 
be  recognized  "under  any  belligerent  right  of  capture  of 
provisions  and  other  goods  shipped  by  American  citizens  in 
the  ordinary  course  of  trade  to  a  neutral  port."  61 

England  declared :  "  Her  Majesty's  Government  have  not 
admitted  liability  in  respect  of  any  claims  for  loss  or  damage 
sustained  ...  in  consequence  of  the  delay  in  the  delivery 
of  the  .  .  .  goods.  But  they  have  offered  to  purchase  the 
flour  on  board  by  United  States  citizens.  Claims  for  redress 
for  the  non-delivery  of  the  cargo  appear  to  be  a  matter 
for  settlement  between  such  claimants  and  the  ship  which 
undertook  to  deliver.  British  subjects  who  owned  goods  on 
board,  having  no  right  to  trade  with  the  enemy,  are  not  in 
the  same  position  as  foreign  owners.  The  latter  are  not 
guilty  of  any  offense  in  trading  with  the  enemy  from  a 
neutral  country  unless  the  goods  are  contraband  and  are 
found  on  board  a  British  ship  in  British  territorial  waters  or 
on  the  high  seas,  and  are  destined  for  the  enemy's  coun- 
tries"02 

With  reference  to  trading  with  the  enemy  Great  Britain 
attempted  to  extend  the  accepted  doctrine  of  continuous 
voyages.  She  expressed  herself  as  follows :  "  An  ultimate 
destination  to  citizens  of  the  Transvaal  even  of  goods  con- 
signed to  British  ports  on  the  way  thither,  might,  if  viewed 
as  one  "continuous  voyage"  be  held  to  constitute  in  a 
British  vessel  such  a  "  trading  with  the  enemy  "  as  to  bring 
the  vessel  within  the  provisions  of  the  municipal  law." 63 

The  United  States  held  that  "  the  destination  of  the  vessel 
being  only  such  [British]  ports  .  .  .  the  port  authorities  may 
presumably,  and  are  assumed  to  be  bound  to,  prevent  trans- 
shipment through  British  territory  of  contraband  destined 
for  the  Boers." 6* 

61  For.  Rel.,  1900,  p.  540. 

82  Mr.   Broderick,  Under-Secretary  for  Foreign  Affairs,   speaking 
in  House  of  Commons  in  regard  to  the  Mashona  on  March  19,  1900. 
""  For.  Rel.,  1900,  p.  609. 
64  For.  Rel.,  1900,  p.  594. 


Enemy. 


149 


the  attempt  which  Great 
;  of  the  Supreme  Court 

to  apply  to  trading  with 
:o  have  been  successful. 

involved  in  the  seizures 
'ere  not  answered  by  the 
ernments  concerned.  In 

President  McKinley  de- 
lad  introduced  important 

a  "  broad  settlement  of 
)  send  goods  not  contra- 
djacent  to  a  belligerent 

rently  admitted :  ( I )  that 
raband  pro  hoc  vice;  (2) 
al  goods  and  divert  them 
lable  suspicion  that  they 
to  a  claim  for  compensa- 


148          Neutral  . 

The   United   St 
right  to  seize  good 
be  recognized  "ur 
provisions  and  otht 
the  ordinary  course 

England  declared 
admitted  liability  in 
sustained  .  .  .  in  cc 
of  the  .  .  .  goods, 
flour  on  board  by  Ui 
for  the  non-deliver) 
for  settlement  betwt 
undertook  to  deliver, 
board,  having  no  rig 
the  same  position  as 
guilty  of  any  offens 
neutral  country  unle; 
found  on  board  a  Brit 
on  the  high  seas,  am 
tries."02 

With  reference  to  t 
attempted  to  extend 
voyages.     She  express 
destination  to  citizens 
signed  to  British  ports 
as  one  "continuous  v 
British  vessel  such  a  " 
the  vessel  within  the  ] 

The  United  States  he  .~uwii  01  me  vessel 

being  only  such  [British]  ports  .  .  .  the  port  authorities  may 
presumably,  and  are  assumed  to  be  bound  to,  prevent  trans- 
shipment through  British  territory  of  contraband  destined 
for  the  Boers."  64 

"For.  Rel.,  1900,  p.  540. 

62  Mr.   Broderick,  Under-Secretary  for  Foreign  Affairs,   speaking 
in  House  of  Commons  in  regard  to  the  Mashona  on  March  19,  1900. 
*""  For.  Rel.,  1900,  p.  609. 
64  For.  Rel.,  1900,  p.  594. 


301]  Trading  ivith  the  Enemy.  149 

No  contraband  was  shown,  and  the  attempt  which  Great 
Britain  made  to  extend  the  ruling  of  the  Supreme  Court 
of  the  United  States  in  1863  so  as  to  apply  to  trading  with 
the  enemy  cannot  be  considered  to  have  been  successful. 
The  questions  of  international  law  involved  in  the  seizures 
of  flour  and  foodstuffs  generally  were  not  answered  by  the 
final  arrangement  between  the  Governments  concerned.  In 
his  Message  to  Congress  in  1900  President  McKinley  de- 
plored the  fact  that  while  the  war  had  introduced  important 
questions  the  result  had  not  been  a  "  broad  settlement  of 
the  question  of  a  neutral's  right  to  send  goods  not  contra- 
band per  se  to  a  neutral  port  adjacent  to  a  belligerent 
area." 

Two  things,  however,  were  apparently  admitted  :  ( I )  that 
a  belligerent  may  declare  flour  contraband  pro  hoc  vice;  (2) 
that  a  belligerent  may  detain  neutral  goods  and  divert  them 
from  their  destination  on  a  reasonable  suspicion  that  they 
are  intended  for  the  enemy,  subject  to  a  claim  for  compensa- 
tion including  damage  by  detention. 


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CONTENTS  FOR  NOVEMBER,  1907 

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OPEN   FIELD   SYSTEM p.  Vinogradoff 

Appendix:  Court  Roll  of  an  Oxfordshire  Manor. 

V.  THE  TAXATION  OF  THE  UNEARNED  INCREMENT 

IN  GERMANY Robert  Brunhuber 

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VI.  THE    TEXAS    STOCK   AND    BOND    LAW   AND    ITS 

ADMINISTRATION E.  T.  Miller 

NOTES  AND  MEMORANDA: 

Political   Economy    and   Business   Economy:    Com- 
ments on  Fisher's  Capital  and  Income  ...  J.  R.  Commons 
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RAILWAY  PROBLEMS 

A   Collection  of  Reprints 
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WILLIAM   Z.   RIPLEY 
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